A Copyfighter’s Musings

On the pho list today, there was a discussion about how Verizon will affect how colleges (and other ISPs) treat notices about P2P infringement – not subpoenas, but 512(c)(3)(a) notice-and-takedown-like letters.  It’s somewhat unclear, but my answer is that it generally won’t.

In reaching its interpretation of 512(h), Verizon resolved that notice-and-takedown cannot apply to P2P infringement because ISPs “can not remove or disable one user’s access to infringing material resident on another user’s computer because [ISPs do] not control the content on [their] subscribers’ computers” (10). This point might seem obvious since 512(c)(3)(a) only applies to 512(b)-(d) providers, not to 512(a) ISP routing. However, because leaving a file in a P2P shared folder has a permanence that ostensibly (though not actually) mimics putting a file on the ISP’s servers, one could argue that a takedown can still occur; in that case, an ISP could still, as the RIAA argued, disconnect Internet access entirely to prevent access to the file.  To the contrary, the court affirmed that there’s a distinction in the statute between files residing on an ISPs’ computers and those that reside on a user’s computers, and that the statute treats disconnecting Internet access as a separate, unrelated remedy.

Many universities (e.g., Brown) have ignored these distinctions, immediately disconnecting Internet access until a student verifies that a file has been removed from a shared folder.  So, doesn’t the court’s ruling render these policies unnecessary?

Unnecessary for 512(a), certainly, but for the 512(i) repeat infringer clause, that’s a matter of interpretation.  At most, Verizon would allow ISPs to forgo the temporary disconnection of service when infringement has first been alleged; however, given that 512(i) is still in play here, I doubt many ISPs – universities in particular – will change their policies.  Notice-and-takedown-letters can still be relevant for 512(i).  Temporarily disconnecting access precludes someone from becoming a repeat infringer, by ensuring that the file is not downloaded again and more files are not added to the shared folders – at least, so the argument would go. In this way, temporary disconnection acts as a precautionary measure. Bad interpretation or not, 512(i) is so vague and universities are so worried about students’ infringing that, as a practical matter, I don’t think P2P policies will change much.  And, if they don’t, 512(i) will allow for a de facto application of 512(c)(3)(a) to 512(a) providers.

If I’m wrong, I’ll be pleased.  But I doubt Verizon fixes this particular problem.  Even if it does, this does point out to how the decision generally does not fix 512’s many problems.  Subpoenas can still be sent to 512(b)-(d) providers, notice and takedown is unchanged generally – the list goes on.

Filed by Derek Slater at 11:18 pm under General news
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