In a recent case, a Virginia federal District Judge increased the burden for internet service providers with users illegally sharing digital songs or movies. In a key test of the so called service provider safe harbor under the Digital Millennium Copyright Act, Cox Cable was deemed to be liable for its users infringing activity because it took insufficient action to terminate their use rights when apprised by copyright holders of the infringement and was apparently too slow to pass on these notices.
While the holding of this case is not necessarily embraced by other federal courts (and is under appeal to the Fourth Circuit), at a minimum, it means that ISP’s seeking to avoid involvement in infringement litigation must take genuine action when presented by copyright holders with formal, credible evidence of infringement such as the takedown notices contemplated in the law. Notices must be promptly passed on and the use rights of those ignoring them must be terminated in a reasonable time. It is difficult to prescribe a specific time frame, but where someone is engaged in repeat infringement, the ISP must remove them from the system without incessant warnings.
It is not clear if this case will be applied to those operating websites allowing user submissions, in the same manner as the above-mentioned safe harbor has been to reduce their exposure for infringing submissions by site users. However, such operators should also be aware that they have some responsibility to deal with infringing posts of which they become aware.