A Copyfighter’s Musings

Check out the new Audio Berkman about the iPod.  Nice mix of views from: Fred von Lohmann, Mike McGuire, Cary Sherman, Scott Kirsner, and Urs Gasser.

Filed by Derek Slater at 9:58 am under General news
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The Ellison v. Robertson  appeals decision came yesterday.  The district court noted that AOL had no obligation to monitor the actions of users for infringements, terminate repeat infringers, or investigate such users; in fact, 17 USC 512(i) “only requires AOL to put its users on notice that they face a realistic threat of having their Internet access terminated.” The policy is only a “mere threat,” which never needs to be put into action.   If 512(i) forced ISPs to punish people for infringement, then “most if not all of the notice and takedown requirements of the subsection (c) safe harbor would be indirectly imported and applied to subsections (a) and (b) as well.”  (I’d say that that’s already happened.)

The appeals court doesn’t spell it out, but they disagree to some extent.  According to the ruling, the ISP must have a notification procedure much like that for 512(c).  Thus, a service provider cannot simply create a policy and then remain willfully ignorant of notices pertaining to that policy.  Seemingly, an ISP would have to act on the notices to whatever extent its policy requires; otherwise, notices of infringement would still “fall into a vacuum and go unheeded.” 

Neither ruling touches on whether these notices must be of actual infringements. One can strictly interpret 512(i) to say that only repeat infringers, and, as opposed to 512(h), not “alleged” infringers, must be terminated – thus, only people found to have infringed by a court twice must be terminated.  In its more flexible reading of what it means to “reasonably implement” a policy, the appeals court points in the other definition of infringer, but it’s not clear from the ruling.

There are other cases that deal with this matter, too.  See Perfect 10 v. Cybernet (summary here) and In re: Aimster.  The former states that “sufficient evidence of blatant, repeat infringement,” and the latter affirms that the ISP must do “what it can reasonably be asked to do” to prevent repeat infringers from using the system.

Filed by Derek Slater at 9:14 am under General news
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