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Attorneys Joust Over Copyright Law’s Legacy

May 13, 2016

The Copyright Office of the United States convened a series of roundtables in New York and San Francisco to address a variety of questions regarding the safe harbors for online service providers under the Digital Millennium Copyright Act. Fenwick copyright litigation co-chair Andrew Bridges spoke at both roundtables, providing insights based on over 20 years of litigating for and advising online service providers. A recent Courthouse News Service article on the San Francisco roundtable quoted some of his comments there.

At the roundtable, representatives of many different interests debated whether the DMCA’s safe harbor provisions provide meaningful assistance to copyright holders without placing undue burdens on online service providers. The group also addressed legal interpretations of the safe harbor elements and conditions, including how service providers handle repeat infringers. One condition of eligibility for the safe harbor is that service providers adopt, notify subscribers and account holders of, and reasonably implement policies of terminating, in appropriate circumstances, subscribers or account holders who are “repeat infringers.”

Who determines whether an accused person is a “repeat infringer”?

“There's only one competent authority to decide who's an infringer and that's a court,” Bridges said, pointing to adjudication as the only option for fairly addressing infringement accusations.

He also emphasized that mere accusation does not establish infringer status, and multiple accusations does not make someone a “repeat infringer.”

"Every motion picture studio and record label has been accused of copyright infringement at least three times. And I bet they would not like to have their Internet service terminated. If accusation makes an infringer, then most of the major copyright holders are infringers by that standard,” Bridges said.

Bridges stressed the seriousness of barring an individual from internet use.

“Being cut off from being able to apply for a job, to pay your bills, to pay taxes in California, where you have to file electronically, is a big deal. Adjudication is the only way to go."

The full article is available through the Courthouse News Service website​ (subscription required).

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