If ISP Refuses Infringer Cut-Off is it DMCA Violation?

LOS ANGELES -- If an Internet Service Provider doesn't cut off a copyright infringer, is it violating terms of the Digital Millennium Copyright Act?

Last week, AVN reported that AT&T was working closely with the Recording Industry Association of America to stop illegal file sharing through uploads and downloads of copyright material. To that effect, the telecom giant has already started a trial program of sending out warning letters to customers accused of illegal file-sharing by the RIAA.

CNET's Greg Sandoval  wondered Wednesday if an ISP did not attempt to warn and then block Web access for repeat offenders, was it in violation of the DMCA?

In addition to AT&T, Comcast is also sending out warning letters, but copyright lawyers told CNET the DMCA doesn't call for it. Those attorneys include Fred von Lohmann of the Electronic Freedom Foundation on the user side and Ben Sheffner, a former copyright legal gun for Fox and NBC Universal who places himself on the side of copyright owners.

While websites such as YouTube and Veoh must contact users accused of infringement, ISPs don't have to because of "safe harbor" laws.

AT&T has yet to address the trial program of sending out warning letters, but did state it will not cut off a customer without a court order and said only the courts can determine who is truly a copyright infringer, not a rights organization such as the RIAA.

CNET's Sandoval points out the DMCA section 512(i) says an ISP must, "implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers."

The EFF's von Lohmann agrees with the AT&T position and said if music and film company claims of infringement were enough to block Internet access, it would be stated in the DMCA.

"People shouldn't lose their Internet access without due process," he said, also adding that YouTube canceling the accounts of users who've been accused is a "conservative approach," basically duck-and-cover by YouTube to protect itself.

Sheffner on the other hand believes rights owners shouldn't have to file a lawsuit every time someone's accused of copyright infringement.

 "Do you know how long it takes and how expensive it is to get a court to say someone is liable for copyright infringement?" he asked CNET. "The whole point of the notice-and-takedown system is to provide copyright owners with a quick and easy and cheap way to combat widespread copyright infringement on the Internet."

Clearly the DMCA is murky and as it's been pointed out, was drafted before sites such as YouTube even existed.  On the EFF homepage, a yellow alert-style banner says "DRM is harmful to consumers, to business, to innovation."

"The DMCA's dirty little secret is that both copyright owners and technology companies complain about different aspects but neither side is asking for a rewrite," Sheffner told CNET. "I think both sides are concerned that once you open it up things could get even worse."