USTelecom, a trade association representing broadband service providers, has sent its comments to the US Copyright Office concerning the DMCA. The letter begins by stating the massive growth of the Internet since the DMCA was passed. It argues that the safe harbor provisions provided by the DMCA are at least part of the reason for that growth. However, after stating that the DMCA is generally working well, the letter does call attention to abuse and misapplication of the DMCA notification system.
USTelecom takes issue with numerous rights holders who believe it is the job of ISPs to police copyright, even though they are mere conduits for communication. They argue that the language of the DMCA is clear that ISPs cannot be held liable for copyright infringement by merely transmitting or providing connections to copyrighted material, but only by storing them.
The letter also claims that ISPs are “receiving millions of invalid notices relating to conduit services,” and claims that dealing with the incredible number of notifications requires significant resources. USTelecom also criticizes rights holders for attempting to use the notification system to extort money out of their customers. It states, “These notices frequently include improper ‘settlement’ demands that rights holders pressure ISPs to forward to unrepresented consumers. These types of notices are neither provided for, nor contemplated by the DMCA.”
The letter also addresses the repeat infringer clause of the DMCA, which requires that service providers terminate services provided to repeat copyright infringers. It draws attention to a recent lawsuit where Cox Communications was found guilty of contributory infringement because its customers were pirates. The judge specifically ruled that Cox did not qualify as a safe harbor because it did not terminate the accounts of customers after several notifications of infringement from the rights holders.
The letter notes that, “A notice of claimed infringement is simply an allegation of infringement by a copyright owner or its agent.” It goes on to say, “Allegations or notices of claimed infringement do not constitute a determination or basis for concluding that anyone is an infringer.” USTelecom also argues that it is unreasonable for anyone to lose Internet access based on mere accusations by stating, “It is simply unthinkable, that a consumer should be able to lose access to such a fundamental and crucial tool absent some form of formal adjudication.”
The letter also has some harsh words for automated systems that send out DMCA takedown notifications. It states, “As applicable to ISPs, the invalid notices are particularly inappropriate if automated, because the underlying algorithms do not assess whether a particular use is infringing or might be lawful.” Although it says automated systems are inappropriate for ISPs, USTelecom states it will not comment on the use of automated systems by companies that actually host content.
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