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Higher Education Community Submits Brief in Internet Service Provider's Case

November 29, 2016

An appellate-level decision in an ongoing lawsuit between two corporate parties could potentially curtail public internet service at colleges and universities and increase administrative burden any time internet service is provided on a campus.

The case in question involves a suit initially filed by music rights management company BMG against telecommunications giant Cox Communications. BMG alleged that Cox, as an internet service provider, committed contributory copyright infringement when it failed to forward BMG's notices of alleged infringement to Cox customers engaging in music file-sharing activity over the internet. Cox countered BMG's argument by invoking a safe harbor provision of the Digital Millennium Copyright Act (DMCA) that protects providers of internet access from damage liability for the infringing activities of its subscribers, so long as the provider has adopted and implemented a policy for terminating the accounts of repeat infringers in appropriate circumstances. Cox lost the initial suit in a Virginia federal district court and has now appealed to the Fourth Circuit Court of Appeals.

NACUBO and 11 other associations submitted an amici curiae brief, led by EDUCAUSE, the Association of American Universities, and the American Council on Education, to the Court of Appeals earlier this month requesting that the Court exclude from its final ruling any statement that would suggest that the DMCA mandates a uniform repeat infringer policy.

The brief took no position on whether or not Cox satisfied the conditions of the DMCA's repeat infringer policy and instead focused solely on explaining to the Court why a ruling suggesting that the DMCA mandates a uniform repeat infringer policy, as opposed to its current flexibility that allows for individualized institutional policies, would be detrimental to colleges and universities.

As internet service providers to millions of Americans, colleges and universities utilize this DMCA safe harbor provision and rely on its flexibility to adequately meet the needs of both students and the general public who utilize campus internet services.

The brief argues that if the Court interprets the DMCA to require a uniform repeat infringer policy, many institutions will be forced to: unreasonably restrict internet access to both students and members of the public who may have no other reliable access to internet services; curtail the many valuable uses of internet-based programs in classrooms; and increase administrative burden and cost. Such a ruling, according to the brief, could also potentially contradict federal broadband policy.

NACUBO and the higher education community eagerly await a final decision and will publish additional details when they become available.

Contact

Megan Schneider
Assistant Director, Federal Affairs
202.861.2547
E-mail