Representing copyright Scott-Hervey-10-webowners attempting to enforce online infringement is often routine, but can sometimes prove challenging. This tends to be the case when a content owner is trying to address large scale infringement of one or multiple works. Most often ISPs are cooperative, but on occasion an ISP may resist responding to a content owner when the owner is represented by an organization like Rightscorp — often referred to as “copyright trolls.” Based on the recent ruling by the Eastern District Court of Virginia against Cox Communications, an ISP is taking a huge risk ignoring infringement notices sent by Rightscorp or any similar organization.

In December of 2014, music publishers BMG Rights Management US, LLC and Round Hill Music LP sued Cox Enterprises Inc. for contributory and vicarious copyright infringement. In the complaint the music publishers allege that the ISP waived its immunity from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”) by disregarding numerous takedown notices sent on their behalf by their agent, Rightscorp, and otherwise failing to terminate the accounts of repeat infringers.

The DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty and to update domestic copyright law for the digital age. In particular, the DMCA established a series of four “safe harbors” that allow qualifying Internet service providers to limit their liability for claims of copyright infringement based on (a) “transitory digital network communications,” (b) “system caching,” (c) “information residing on systems or networks at [the] direction of users,” and (d) “information location tools.” 17 U.S.C. §§ 512(a)-(d). To qualify for protection under any of the safe harbors, the ISP must, among other requirements, adopt and implement a “repeat infringer” policy that provides for the termination of account holders.

Continue Reading ISPs That Ignore Notices From “Copyright Trolls” Risk Losing DMCA Safe Harbor Protections

 By: Scott Hervey

Once again, California leads the nation in passing online privacy consumer protection legislation. On September 30, 2013 Governor Jerry Brown signed into law A.B 370 which adds new provisions to California’s existing Online Privacy Protection Act (Business and Professions Code Section 22575).  These new provisions require the operators of websites, online services and  mobile applications to disclose how they respond to an electronic request not to track an individual consumer’s online activities over time and across different Web sites or online services. According to the bill’s author, Al Muratsuchi, since California passed CalOPPA in 2004, evolving technology and new business practices have raised new privacy concerns, including concerns over online behavioral tracking.

Continue Reading California Passes New Privacy Law That May Require Revisions to Most Online Privacy Policies.