The Digital Millennium Copyright Act (“DMCA”) provides under 17 U.S.C. § 512 a safe harbor defense to copyright infringement for providers that have adopted and reasonably implemented a policy that terminates subscribers who are repeat copyright infringers. Many companies have terms of use and other company policies designed to take advantage of such DMCA safe harbor provisions. In the past many have argued that a “repeat infringer” means someone who has been held liable in court for multiple instances of copyright infringement. The time, effort, and money required on the part of rights holders to adjudicate multiple instances of copyright infringement have made the safe harbor provisions far reaching as the number of such “repeat infringers” is small.
However, in a recent opinion, the U.S. Court of Appeals for the Fourth Circuit held that “repeat infringer” is not limited to an adjudicated infringer. As such, the Fourth Circuit rejected Cox Communications’ argument that only terminating adjudicated infringers was sufficient under the DMCA safe harbor provisions. If your company’s terms of use and other company policies rely on the DMCA safe harbor provisions, now may be the time to review those policies to make sure such policies reflect the correct definition of “repeat infringer.”
Read the full opinion here, BMG Rights Management (US), LLC v. Cox Communications, Inc.