EDUCAUSE Joins Amicus Brief in DMCA Appeals Case

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(November 17, 2016 – Jarret Cummings) EDUCAUSE worked with the Association of American Universities (AAU), the American Council on Education (ACE), the Association of Research Libraries (ARL), the American Library Association (ALA), and seven other higher education groups to submit an amicus brief in the appeal of the BMG v Cox case. A federal district court had previously found that Cox Communications failed to appropriately enforce its policy for holding users of its Internet access services accountable for repeat acts of copyright infringement (i.e., its “repeat infringer” policy). Having and effectively administering such a policy is a condition that a network service provider must satisfy in order to claim the legal safe harbor for copyright infringement by its users under the Digital Millennium Copyright Act (DMCA). Cox’s failure to enforce its repeat infringer policy invalidated its claim to the DMCA safe harbor, thus making it liable in the court’s eyes for contributory copyright infringement. As a result, the court ordered Cox to pay BMG $25 million in damages. (For more information, please see articles from the Center for Internet and Society at Stanford Law School and the Washington Post.)

EDUCAUSE and its fellow higher education associations chose to file a “neutral” brief during the appeals process — we did not support either the plaintiff or the defendant, but rather asked the appeals court to recognize the negative, unintended consequences a sweeping ruling could have on other parties covered by the DMCA. In the case of educational institutions and libraries, which fall under the DMCA due to the Internet access services they provide to their students, faculty, staff, and/or patrons, we argued that a ruling imposing new requirements for claiming the safe harbor (e.g., uniform standards for repeat infringer policies) or lessening the scope of its protections would force institutions and libraries to limit the network services they provide. Since this would fly in the face of the significant public interests served by the availability of Internet access at libraries and educational institutions, we urged the court to limit its ruling to the specifics of the case at hand.

Briefs in the case were due on November 14, 2016. The panel of judges hearing the case for the Fourth Circuit Court of Appeals has not yet indicated its timetable for reviewing arguments and rendering a judgement. It is likely, however, that whichever party loses on appeal will ask for a hearing of the case by the judges of the full circuit, and ultimately by the Supreme Court. An adverse ruling at the appeals court level could be used as precedent in other parts of the country, creating problems for institutions and libraries beyond the states of the Fourth Circuit, while an adverse ruling by the Supreme Court would impact the nation as a whole. With this in mind, EDUCAUSE and its partners will continue to monitor the case for new developments and opportunities to reflect the interests of higher education and libraries.

Jarret Cummings is director of policy and government relations at EDUCAUSE.