Before the

UNITED STATES COPYRIGHT OFFICE

Library of Congress
Washington, DC

In the Matter of
Docket No. 2015-7
Section 512 Study: Notice and
Request for Public Comment

COMMENTS OF CTIA

Thomas C. Power
Senior Vice President, General Counsel
Maria L. Kirby
Associate General Counsel and Assistant
Vice President of Regulatory Affairs
Kathryn B. DallAsta
Associate Counsel

April 1, 2016

TABLE OF CONTENTS
Page
Introduction and Summary ............................................................................................................. 1
I.

The DMCAs Section 512 Safe Harbors Have Worked To Promote Enormous
Growth of the Internet and Should Be Construed as a Core Part of Copyrights Public
Interest Balance. [NOI Questions 1, 3, 4, 5] ................................................................ 3
A. The Primary Purpose of Section 512 Was To Ensure that Copyright Claims Did Not
Stifle the Growth of Essential and Innovative Technology. .......................................... 4
B. The Section 512 Safe Harbors Have Succeeded in this Goal, as Evidenced by the
Tremendous Growth in the Internet and Digital Services since the DMCAs
Enactment. ..................................................................................................................... 5

II.

Notice and Takedown has No Place in the Context of the Section 512(a) Safe Harbor
for Conduits, but Rights Holders Have Repeatedly Served Notices Purporting to
Address the Transmission of Communications. [NOI Questions 6, 7, and 9] ............. 6
A.

Takedown Notices Are Irrelevant as a Matter of Law In the Context of 512(a). ..... 7

B.

Despite the Clear Language of 512(a), Rights Holders Continue to Flood Conduit
Providers with Invalid Takedown Notices. ............................................................... 8

III.

It is Unreasonable and Contrary to Congress Intent to Hold Service Providers

Responsible for Policing Copyright Infringement When Those Service Providers Act
as Conduits for Digital Communications. [NOI Questions 11, 19] ............................. 9
A.

Congress Clearly Limited a Service Providers Obligation to Monitor for Infringing

Activity. .................................................................................................................... 9

B.

The Volume and Speed of Digital Communications Transmitted Over a Service

Providers Network Makes Monitoring for Infringement Impossible In the Conduit
Context. ................................................................................................................... 10

IV.
A.

With Limited Exceptions, Courts Have Construed the Entities and Activities Covered
by Section 512 as Congress Intended. ........................................................................ 10
Courts That Have Conditioned the Section 512 Safe Harbors on a Service
Providers Notice and Takedown Procedure Are Misguided, Especially in the
Conduit Context. ..................................................................................................... 11

V. Members of the Public Should Not Lose Their Right To Use The Internet Based on
Allegations of Copyright Infringement. [NOI Questions 22 and 23] ........................ 12
A.

Internet Access, and Increasingly Wireless Internet Access, Is Paramount to

Function in Modern Life and Protected by the First Amendment. ......................... 12

CONCLUSION ............................................................................................................................. 16

ii

Before the
UNITED STATES COPYRIGHT OFFICE
Library of Congress
Washington, DC

In the Matter of
Docket No. 2015-7
Section 512 Study: Notice and
Request for Public Comment

COMMENTS OF CTIA

CTIA offers these comments as its initial response to the Copyright Offices December
31, 2015 Notice of Inquiry on the Digital Millennium Copyright Acts section 512 safe harbors.
CTIA appreciates the opportunity to comment on this important inquiry.
Introduction and Summary
CTIA offers the following thoughts:

The section 512 safe harbors have been successful in achieving the purpose
that Congress intended of ensuring that copyright claims did not stifle the
growth of the internet and innovative technology;

Notice and takedown has no place in the provision of the conduit function, yet
rights holders have repeatedly served invalid notices purporting to address the
transmission of communications;

It is unreasonable and contrary to the plain language of section 512 to hold

service providers responsible for policing copyrights when those service
providers act as conduits for digital communications;

Many courts have applied the section 512 safe harbors as Congress intended,
but recent decisions by a handful of courts distort established precedent
regarding actual and alleged knowledge of copyright infringement and the
scope of protection afforded by section 512(a);

Internet access, and increasingly wireless internet access, have become a

significant component of modern life and members of the public should not

lose their right to access the internet based on allegations of copyright

infringement.
CTIA elaborates on these points below.
CTIA is an international organization representing all sectors of wireless
communications. Members of CTIA include wireless telecommunication carriers, aggregators of
content provided over wireless telecommunications systems, equipment suppliers, wireless data
and internet companies, and other contributors to the wireless ecosystem.
CTIA frequently participates in administrative proceedings and coordinates efforts to
provide information to government agencies and to the public about wireless issues. CTIA has
also presented its views in testimony before Congress and has filed numerous amicus briefs in
federal courts on behalf of the wireless industry on a variety of issues, including copyright
issues. See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
CTIA and its members have a substantial interest in the subject matter of the NOI, as they
rely on the protections in section 512 to provide wireless internet services, and would be directly
impacted by any change to the section 512 safe harbors. CTIAs carrier members offer 4G LTE
wireless internet to 98% of the population of the United States and have invested more than $430
billion in their networks over the past 30 years, a staggering 40% of which was made from 2009
to 2014. 1 Because of their continued investment in wireless infrastructure, CTIAs members
have been able to satisfy Americas growing demand for wireless services; together, these
companies currently serve more than 350,000,000 wireless subscriber connections in the United
States. Many Americans now own multiple wireless devices, exponentially increasing demand
for wireless services and reliance on wireless carriers networks. 2 Once used primarily for voice
communication, these networks now also support data and messaging capabilities, handling 1.92
trillion text/SMS messages and 4.1 trillion megabytes of mobile data traffic in 2014 alone. 3
Expansion of consumer uses for mobile broadband service has generated the growth in volume
of data that travels over carrier networks. Routine, yet increasingly necessary communications
that enable access to government services, online banking, and health care have made mobile
wireless services an important part of Americans daily lives. 4
As intended, the balance of interests reflected in the existing interpretation of section 512
and the safe harbors contained therein have facilitated the continued development of electronic
commerce and the growth of the [i]nternet. 5 CTIAs members have been able to provide
reliable, high-speed wireless services and have built their businesses, network infrastructures,
1

See Dante DOrazio, Obama Administration Reaches Goal to Provide LTE to 98 Percent of Americans, The Verge
(March 23, 2015), http://www.theverge.com/2015/3/23/8273759/obama-administration-passes-goal-lte-for-98percent-of-americans./; see also CTIA Wireless Industry Indices; Annual Wireless Survey Results: A
Comprehensive Report from CTIA Analyzing the U.S. Wireless Industry (rel. Sept. 2015) at 89, et seq.
2
Id. at 17.
3
Id. at 9.
4
See FCC Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless,
Including Commercial Mobile Services, WT Docket No. 15-125, Eighteenth Report, (rel. Dec. 23, 2015) at para. 1
(FCC Report).
5
H.R. Rep. No. 105-551, pt. 2 at 21 (1998).

technology platforms, and wireless service offerings with the common understanding that the
DMCA supports the very activities necessary to develop and maintain such developments. A
shift in that framework, especially one that would seek to force service providers themselves to
police all messages and data on their networks for copyright infringement, would undoubtedly
slow the rate at which wireless services are transmitted, thereby undermining the very purpose of
the safe harbors, especially for those that act merely as a conduit.
Preservation of the DMCAs legal protections will be even more important as industry
prepares for the new 5G wireless technology platform. While wireless connectivity already
touches nearly every aspect of modern life, 5G will be the backbone of networks that support
billions of sensors, wearables, and other Internet of Things devices that advance healthcare,
transportation, and infrastructure. 6 Moreover, 5G will have real impact on, not only the markets
for mobile devices and wireless services, but the entire U.S. economy. Currently, licensed
wireless service generates over $400 billion in annual economic activity and every wireless
industry job results in another 6.5 people finding employment. 7
Nearly all of Americas industries stand to recognize economic benefits with 5G
capabilities. For example, cities will be able to leverage 5G technology to bring wireless
connectivity to utility meters, street lights, and water systems, allowing for cleaner, more
efficient uses of limited resources. Global economic benefits estimated between $644 billion-1.2
trillion within the next 10 years. Similarly, the agricultural industry is likely to see annual
economic benefits between $53-341 billion, as 5G will help optimize crop growth and conserve
resources. 8 In short, 5G presents a once-in-a-generation opportunity to transform Americas
homes, cities, and society.
Notably, many of the services contemplated by 5Gas well as those wireless services
already in use todaydo not raise copyright concerns. Thus, it is vital that the safeguards of
section 512 that allowed the internet and wireless services to evolve and provide important
consumer benefits, not be changed in a way that would chill investment to the detriment of
wireless broadband and ultimately society at large.
I.

The DMCAs Section 512 Safe Harbors Have Worked To Promote Enormous
Growth of the Internet and Should Be Construed as a Core Part of Copyrights
Public Interest Balance. [NOI Questions 1, 3, 4, 5]

Questions 1, 3, 4, and 5 of the NOI ask about the general effectiveness of the section 512
safe harbors, whether they are working in the way that Congress originally intended, the impact
that the safe harbors have had on the growth and development of online services, protection and
value of copyrighted works, and whether they strike the right balance between the rights of
copyright owners and online service providers.

See Thomas K. Sawanobori, The Next Generation of Wireless: 5G Leadership in the U.S., CTIA, at 1, 5 (Feb. 9,
2016), http://www.ctia.org/docs/default-source/default-document-library/5g-white-paper.pdf.
7
Id. at 1.
8
Id. at 5, 6.

The overarching purpose of copyright is to motivate authors to share their creative works
for the benefit of the public interest. See United States v. Paramount Pictures, 334 U.S. 158
(1948) ([R]eward to the author or artist serves to induce release to the public of the products of
his creative genius.); Fogerty v. Fantasy, Inc., 510 U.S. 526 (1994) (copyright is intended to
motivate the creative activity of authors). The limitations on liability for service providers in
section 512 are the means by which Congress uses copyright to stimulate artistic creativity for
the general public good. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
As discussed below, the primary purpose of section 512 was to ensure that copyright claims did
not inhibit the growth of the internet. Thus far, the safe harbors have been working largely as
Congress intended. The phenomenal expansion of the Internet since the DMCAs enactment in
1998 serves as a powerful testament to the success of section 512 in fostering and protecting that
growth.
A.

The Primary Purpose of Section 512 Was To Ensure that Copyright Claims
Did Not Stifle the Growth of Essential and Innovative Technology.

Congress enacted section 512 to ensure that the threat of copyright liability being
imposed on the providers of internet services did not suspend the dynamic growth of diverse,
high-quality internet services. As the Senate Report to the DMCA explained, Title I of the
DMCA was intended to provide protection to copyright owners and create[] the legal platform
for launching the global digital online marketplace for copyrighted works. S. Rep. 105-190, at 8
(1998). Conversely, Title II was enacted to protect service providers and ensure that they
continued to invest in their services and in the expansion of the speed and capacity of the internet
and the variety of internet services that they offer.
At the same time, without clarification of their liability, service
providers may hesitate to make the necessary investment in the
expansion of the speed and capacity of the [i]nternet. In the
ordinary course of their operations service providers must engage
in all kinds of acts that expose them to potential copyright
infringement liability. For example, service providers must make
innumerable electronic copies by simply transmitting information
over the [i]nternet. Certain electronic copies are made to speed up
the delivery of information to users. Other electronic copies are
made in order to host World Wide Web sites. Many service
providers engage in directing users to sites in response to inquiries
by users or they volunteer sites that users may find attractive.
Some of these sites might contain infringing material. In short, by
limiting the liability of service providers, the DMCA ensures that
the efficiency of the [i]nternet will continue to improve and that
the variety and quality of services on the Internet will continue to
expand.
Id. at 2. (emphasis added). Congress recognized that the very nature of a service providers dayto-day activities (e.g., transmitting, hosting, storing, caching, and directing) could subject it to
potential copyright infringement liability for the acts of its users and other third parties. Further,
4

Congress understood that without legal clarification of liability for the acts of their users and
other third parties, service providers may be reluctant to invest in the infrastructure necessary to
expand the speed and capacity of the internet. Id. See UMG Recordings, Inc. v. Shelter Capital
Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (explaining that Congress enacted the
DMCA because it was loathe to permit the specter of liability to chill innovation); see also
Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 642 (S.D.N.Y. 2011) ([T]he
DMCA was enacted to clarify copyright law for internet service providers in order to foster fast
and robust development of the internet.).
B.

The Section 512 Safe Harbors Have Succeeded in this Goal, as Evidenced by
the Tremendous Growth in the Internet and Digital Services since the
DMCAs Enactment.

Since 1998, the section 512 safe harbors have allowed the internet to flourish and grow at
unprecedented speeds. According to the U.S. Census Bureau, in 1997, 36.6% of American
households had a computer at home, and only 18.8% had internet use. 9 A decade later, the
number of households with internet access had more than tripled to 61.7%. 10 More recently, in
2014, U.S. [i]nternet traffic [] was equivalent to 21x the volume of the entire U.S. [i]nternet in
2005. 11 This rapid growth is not expected to slow anytime soon. In fact, U.S. internet traffic
will soon reach 96x the volume of the entire U.S. internet in 2005. 12
While the growth of internet generally has been staggering, the explosion of wireless
internet services, such as those provided by CTIAs members, has been particularly noteworthy.
Growing from the initial digital networks deployed in the early 1990s (with 500,000 digital
subscribers in 1995), the U.S. wireless industry now serves more than 355 million active digital
devices. 13 Not only has the number of connected digital devices grown by over 700x what it was
in 1995, 14 but mobile services have permeated nearly all industry sectors, including health,
finance, education, and entertainment.
One need not look far in order to witness the impact of mobile services across Americas
core industries. For example, while mobile health services were relatively unknown a decade
ago, the use of mobile health applications has more than doubled in the past three years. 15 This
number is only expected to climb, as 86% of U.S. clinicians believe mobile applications will
become an integral part of patient health management by 2020, 16 and the global telemedicine,

U.S. Census, Computer and Internet Use in the United States: Appendix Table A (Households with a Computer
and Internet Use: 1984 to 2009), http://www.census.gov/hhes/computer/ (comparing the table from 1997 with the
table from 2007).
10
Id.
11
Cisco VNI Forecast Highlights, at United States 2014 Year in Review.
12
Id.
13
See FCC Report at para. 38, Chart III.A.3.
14
Id.
15
See PWC, Top Health Industry Issues of 2016, at 4 (December 2015), http://www.pwc.com/us/en/healthindustries/top-health-industry-issues/assets/2016-us-hri-top-issues.pdf. (reporting that mobile health app usage was
at a 15 percent adoption rate worldwide in 2013 and jumped to 32 percent in 2015).
16
See PWC, Top Health Industry Issues of 2015, at 3 (December 2014), http://www.pwc.com/en_US/us/healthindustries/top-health-industry-issues/assets/pwc-hri-top-healthcare-issues-2015.pdf.

telehealth and m-health markets are expected to be valued $45.4 billion by 2021. 17 Mobile
financial services have also become increasingly prevalent in recent years. As of last year, more
than half of Americans used their smartphones for online banking, 18 and 42% checked their
banking account from a mobile application a few times per week. 19 The success of mobile
services can even be observed in Americas classrooms, where four out of five students now use
mobile technology to study. 20
Notably and of particular relevance for copyright purposes, the development of mobile
entertainment has opened new, lucrative markets for the licensing and lawful dissemination of
copyrighted works. Streaming music and video services such as Pandora, Spotify, and Hulu
would not be possible without this development. These developments have not only expanded
consumer choice, but have created a variety of new opportunities for copyright owners.
In 1998, Congress created section 512 to help catalyze the internets growth and success,
which in turn spawned new digital services and markets throughout the American economy.
Now, as America looks to a new era of everything wireless, the section 512 safe harbors are
integral to the future growth and success of wireless services.
II.

Notice and Takedown has No Place in the Context of the Section 512(a) Safe
Harbor for Conduits, but Rights Holders Have Repeatedly Served Notices
Purporting to Address the Transmission of Communications. [NOI Questions 6,
7, and 9]

Section 512 creates four safe harbors, each of which immunizes service providers from
liability for copyright infringement under certain conditions. Pursuant to the DMCAs statutory
framework, these safe harbors are available when a service provider engages in one or more of
following: (a) transitory digital network communications, i.e. serving as a conduit; (b)
temporarily storing material that is being transmitted automatically over the internet from one
third party to another (caching); (c) storing information residing on systems or networks at the
direction of a user (hosting); and (d) referring or linking users to online sites using information
location tools, e.g. a search engine. See 17 U.S.C. 512(a)-(d). The NOI focuses on the
notice-and-takedown process, which requires that service providers who conduct the activities
that are the subject of sections 512 (b), (c), and (d) respond [ ] expeditiously to remove, or
disable access to, the material that is claimed to be infringing. 17 U.S.C. 512(b)(2)(E),
512(c)(1)(C), and 512(d)(3). The statute itself and precedent since its passage make clear that
17

See Wintergreen Research, Push Telecommunications for Tele-Medicine (PTT) and M-Health: Market Shares,
Strategies, and Forecasts, Worldwide, 2015 to 2021, (April 21, 2015),
https://marketpublishers.com/report/technologies_electronics/telecommunications/push-telecommunications-4-telemedicine-ptt-n-m-health-market-shares-strategies-n-forecasts-worldwide-2015-to-2021.html.
18
See Pew Research Center, U.S. Smartphone Use in 2015, at 6 (April 1, 2015),
http://www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf (reporting that 57% of Americans now use
their smartphone for online banking).
19
See Bank of America, Trends in Consumer Mobility Report 2015 (June 2015),
http://newsroom.bankofamerica.com/files/doc_library/additional/2015_BAC_Trends_in_Consumer_Mobility_Repo
rt.pdf.
20
See McGraw-Hill Education, (March 2015), http://www.mheducation.com/about/news-room/report-new-mcgrawhill-education-research-finds-more-80-percent-students-use-mobile (more than 80% of students use mobile
technology to study).

when a service provider acts as a data conduit, as described in 512(a), it is not required to comply
with notice and takedown in order for the safe harbor to apply. See Recording Indus. Assn v.
Verizon Internet Services, Inc., 351 F.3d 1229, 1234 (D.C. Cir. 2003).
For purposes of these comments, CTIA is focused primarily on the service providers role
as a conduit, and therefore does not address questions in the NOI, or portions thereof, related to
the notice-and-takedown process that relates to section 512(b), (c), and (d).
Questions 6, 7, and 9 of the NOI address the effectiveness of the notice-and-takedown
process and its continued viability as a solution over the long run. The NOI also asks about the
benefits and shortcomings of human and automated takedown processes under section 512
notice and takedown.
A. Takedown Notices Are Irrelevant as a Matter of Law In the Context of Section
512(a).
Section 512 recognizes the unique importance of the conduit function, its core
relationship to protected expression, the practical impossibility of controlling communications as
they are being transmitted, and the invasion of privacy and compromised security that this
control would entail. Thus, unlike the safe harbors set forth in section 512(b), (c), and (d),
section 512(a) is not conditioned on the service providers response to any notice alleging
infringement. Apart from the general conditions of section 512(i), which provides that a service
provider seeking to avail itself of any of the safe harbors is required to adopt a policy to
terminate repeat infringers, the liability limitation provided by section 512(a) requires only that
the service provider in fact be functioning as a conduit for third party communications or other
transmissions. Compare 17 U.S.C. 512(a) with 512(b)-(d); see 17 U.S.C. 512(i).
Courts have repeatedly confirmed that DMCA takedown notices have no role in the
protections offered by section 512(a). Early efforts following the passage of the DMCA to
sanction these takedown notices were firmly rebuffed. 21 In Recording Indus. Assn v. Verizon
Internet Services, Inc., the D.C. Circuit Court of Appeals made clear that notices sent to
providers concerning its activity as a mere conduit are rendered null and void by the statute
itself. 351 F.3d at 1234 (Notably present in 512(b)-(d), and notably absent from 512(a), is
the so-called notice and take-down provision.), cert. denied 543 U.S. 924 (2004); see In re
Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 776 (8th Cir.
2005) (explaining that the absence of a notice obligation in section 512(a) makes sense, as a
conduit provider has no ability to remove infringing material from its system or disable access to
that material).

21

See Jennifer M. Urban, Brianna Schofield, and Joe Karaganis, Notice and Takedown in Everyday Practice (rel.
March 29, 2016) at pg. 48, Univ. of Cal. Berkeley School of Law and The American Assembly Public Policy
Institute at Columbia University, available at SSRN: http://ssrn.com/abstract= (noting that 512(a) strongly affirmed
general safe harbor protection when the ISP acts solely as a data conduit; responding to notices is not required.).

B. Despite the Clear Language of Section 512(a), Rights Holders Continue to Flood
Conduit Providers with Invalid Takedown Notices.
Despite the clear language of the statute, and the consistent court decisions affirming the
same, the conduit safe harbor has come under attack by copyright owners and their agents. Each
month, copyright owners and their agents inundate service providers, including CTIAs
members, with scores of takedown notices purporting to invoke the DMCA for claims related to
the service providers activities under section 512(a). Because these notices are sent to service
providers for claims that occur when the provider is acting merely as a conduit, and not engaging
in the storing, caching, or linking activities contemplated by section 512(b), (c), and (d), they
have no significance under the DMCA and are therefore invalid. While these invalid notices
have primarily been directed at wireline service providers, wireless services receive tens of
thousands of invalid DMCA notices each month.
Although DMCA notices are irrelevant for purposes of the section 512(a) safe harbor for
conduits, as a more general condition of safe harbor eligibility, section 512(i) requires that
service providers adopt and reasonably implement a repeat infringer policy. Thus, rights holders
and their agents continue to paper conduit providers with invalid notices with the intent of
parlaying such notifications into a violation of the repeat infringer policy requirement of section
512(i). These repeated attempts are in vain, as courts have been clear in holding that even
notices that are properly served in connection with a service providers caching, storing, or
linking activities (and thus considered valid under the DMCA), must still satisfy the statutory
elements set forth in section 512(c)(3)(A) in order to trigger a repeat infringer consideration. A
valid notice that fails to satisfy the statutory requirements set forth in section 512(c)(3)(A) is not
DMCA-compliant, and therefore does not warrant a service providers consideration for
purposes of repeat infringer termination. The Ninth Circuit articulated this analysis in UMG
Recordings, where it stated, a notification from a copyright owner or [agent] that fails to
comply substantially with the provisions of subparagraph [(3)](A) shall not be considered under
paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of
facts and circumstances from which infringing activity is apparent. Section 512(c)(3)(B); see
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1022 (9th Cir. 2013)
(describing section 512(c)(3)(B) as an exclusionary rule). If valid, but non-DMCA compliant
notices are insufficient to trigger a service providers consideration for repeat infringement
purposes, it follows a fortiori that such invalid notices should have no significance in connection
with the section 512(a) conduit safe harbor, since the notices validity is a threshold requirement
for purposes of any repeat infringer determination.
Regardless of whether notices relate to a service providers provision of the conduit
function of section 512(a) or the activities provided for in sections 512(b)-(d), automated notices
should not be considered valid because they are generated from algorithms that are unable to
assess whether a particular use might be lawful. This concern is particularly acute with respect
to a determination of fair use a legal conclusion that is impossible for an algorithm to draw.
The inability of automated notices to consider fair use is a fundamental defect. Courts have long
recognized the critical role of fair use in copyright law, and have repeatedly affirmed its
necessity in achieving copyrights objectives. For example, in Campbell, the Court observed
[F]rom the infancy of copyright protection, some opportunity for fair use of copyrighted
8

materials has been thought necessary to fulfill copyrights very purpose . Campbell v. AcuffRose Music Inc., 510 U.S. 569, 575 (1994); accord Authors Guild, Inc. v. Hathitrust, 755 F.3d
87, 95 (2d Cir. 2014). Automated takedown notices fail to provide opportunity for fair use and
therefore undermine the basic fabric of copyright.
III.

It is Contrary to Congress Intent and Unreasonable to Hold Service Providers

Responsible for Policing Copyright Infringement When Those Service Providers
Act as Conduits for Digital Communications. [NOI Questions 11, 19]

NOI question 19 asks about the courts interpretations of the actual and red flag
knowledge standards under the section 512 safe harbors, including section 512(m)(1). The
knowledge standards of section 512 are not relevant to the conduit function, and therefore
CTIAs discussion of question 19 is focused only on assessing section 512(m)(1), which
provides that the liability limitations of section 512 shall not be conditioned on a service provider
monitoring its service or seeking facts indicating infringing activity. 22 Question 11 asks whether
there are technologies that would improve the effectiveness of the notice-and-takedown process,
and indirectly contemplates whether monitoring technologies provide a feasible solution.
Section 512 imposes no obligation on service providers to monitor users or ferret out
instances of copyright infringement. In fact, section 512(m) expressly states the opposite.
However, when considering monitoring in the conduit context, one need not look solely to the
plain meaning of the statute, as such efforts would be technically and operationally impossible to
implement.
A. Congress Clearly Limited a Service Providers Obligation to Monitor for Infringing
Activity.
The plain language of section 512(m) demonstrates that Congress never intended for
service providers to bear the obligation of monitoring for infringing activity. Section 512(m)
states that [n]othing in this section shall be construed to condition the applicability of
subsections (a) through (d) on ... a service provider monitoring its service or affirmatively
seeking facts indicating infringing activity. 17 U.S.C. 512(m).
The text of section 512(m) reflects Congress considered policy determination that the
DMCA notification procedures [would] place the burden of policing copyright infringement
identifying the potentially infringing material and adequately documenting infringement
squarely on the owners of the copyright. See UMG Recordings, 718 F.3d at 1022 (quoting
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007)). When enacting the
DMCA, Congress was well aware that infringement allegations may take many guises, but took
care to relieve service providers from any duty to proactively determine infringement. D.
Nimmer, Repeat Infringers, 52 J. Copyr Socy of the U.S.A. 167 (2005). As a result, Congress
drafted 512(m) with the recognition that copyright holders know precisely what materials they
22

The NOIs description of this provision as limiting the service providers duty to monitor does not fully capture
the significance of the provision. In fact, there is no such duty, and the only exception to the clear language of
section 512(m) is in connection with a standard technical measure complying with the provisions of subsection (i).
No such standard technical measures exist, so the exception is not relevant.

own, and are better poised to identify infringing materials than service providers. See S. Rep.
No. 105-190, at 48.
Courts have relied on section 512(m) as important to their construction of the section 512
safe harbors, and have interpreted section 512(m) to mean that a service provider does not have
to actively monitor content. See, e.g., Viacom Intl., Inc. v. YouTube, Inc., 676 F.3d 19, 35, 40
(2d Cir. 2012) (construing the knowledge standard of section 512(c) and the requirement of a
repeat infringer policy in conjunction with section 512(m)); Corbis Corp. v. Amazon.com, Inc.,
351 F. Supp. 2d 1090, 1104 (W.D. Wash. 2004) (construing the repeat infringer policy
requirement in conjunction with section 512(m) and holding that Amazon need not conduct
active investigation of possible infringement or make a decision regarding difficult infringement
issues.).
B. The Volume and Speed of Digital Communications Transmitted Over a Service
Providers Network Makes Monitoring for Infringement Impossible In the Conduit
Context.
CTIAs members are unaware of any technologies that would make notice and takedown
more efficient. Suggestions by rights holders that the implementation of monitoring
technologies by service providers will increase the effectiveness of notice and takedown are
unrealistic, especially in the conduit context.
Every minute, Americans use 7.7 million MB of data, exchange 3.6 million SMS text
messages, and share almost 300,000 MMS messages. 23 In turn, wireless service providers
transmit trillions of messages and megabytes of data, all moving at the speed of electrons, over
their networks. Monitoring such messages and transmissions for purposes of identifying
potential copyright claims is not feasible, and doing so would risk dramatically slowing service
provider systems, potentially bringing the fast internet service that America has come to rely on
to a halt. Even if monitoring was possible, a service provider would still be unable to distinguish
between lawful and unlawful transmissions of data. Monitoring technologies that are unable to
account for lawful uses, including fair use, are ultimately meaningless and will likely end up
causing more harm than good for service providers and their customers. The Ninth Circuit
recognized the limited ability of a service provider to make necessary legal determinations in
Shelter Capital: [A][service] provider could not be expected, during the course of its brief
cataloguing visit to determine whether [a] photograph was still protected by copyright or was in
the public domain; if the photograph was still protected by the copyright, whether the use was
licensed, and if the was not licensed, whether it was permitted under the fair use doctrine.
Shelter Capital, 718 F.3d at 1022.
IV.

With Limited Exceptions, Courts Have Construed the Entities and Activities
Covered by Section 512 as Congress Intended.

Question 2 of the NOI specifically asks whether courts have properly construed the
entities and activities covered by the section 512 safe harbors. In general, courts have been
23

See CTIA-The Wireless Association, CTIAs Wireless Industry Summary Report, Year End 2014 Results, 2015,
http://www.cita.org/your-wireless-life/how-wireless-works/annual-wireless-industry-survey

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careful in their interpretation of the DMCAs section 512 safe harbors and have limited placing
additional burdens on service providers that would run contrary to Congress intent and the
language of the statute. However, despite the consistency of judicial reasoning applied to section
512 for almost two decades, there have been two flawed threads of judicial interpretation that, if
left unaddressed, could undermine the important role that section 512 has played in fostering the
growth of the internet as a forum for speech and commerce.
A. Courts That Have Conditioned the Section 512 Safe Harbors on a Service
Providers Notice-and-Takedown Procedure Are Misguided, Especially in the
Conduit Context.
A number of courts have correctly applied the statutes distinction of alleged and actual
infringement. Notably, in Corbis Corp., the Court recognized that [a]ctual knowledge of
blatant, repeat infringement cannot be imputed merely from the receipt of notices of
infringement. Corbis Corp., 351 F. Supp. 2d at 1090. As Corbis correctly explained, [e]ven
assuming that the notices complied with the DMCAs notice requirements, see 17 U.S.C.
512(c)(3), such notices are not the sine qua non of copyright liability. Id. More recently, in
Capitol Records, the Court reasoned that takedown notices themselves are not evidence of
blatant infringement and held that the service providers decision to refrain from terminating
those user accounts was appropriate. Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d
627 (S.D.N.Y. 2011).
Unfortunately, not all courts have been as careful in their application of the statute.
Courts that have conditioned the protections of section 512 on a service providers procedure for
handling takedown notices are misguided, as they conflate the notice-and-takedown process of
section 512 with the more general repeat infringer policy requirement of section 512(i). The
error is particularly egregious when the safe harbor at issue is the conduit safe harbor of section
512(a), for which takedown notices are completely irrelevant. As described in Part II above,
Congress expressly refused to condition the conduit safe harbor in section 512(a) on response to
takedown notices. Thus, a courts decision to impose a takedown requirement through the back
door of section 512(i) contravenes the clear language of the statute.
The Ninth Circuit committed such an error in Ellison, when it held that AOL could be
found by a reasonable jury not to have reasonably implemented a repeat infringer policy on the
ground that it did not have an effective notification procedure in place at the time the alleged
infringing activities were taking place because it had changed the email address for receiving
takedown notices and had forwarded notices sent to the old email address. Ellison v. Robertson,
357 F.3d 1072 (9th Cir. 2004). The ruling was particularly troubling because the court held that
the conduct at issue was covered by the conduit safe harbor, a safe harbor that Congress did not
condition on response to any type of notice. Id. at 1080-81. In other words, under the Ninth
Circuits reasoning in Ellison, AOL might not be protected under the conduit safe harbor because
it did not have a process for receiving an invalid notice that had no status under section 512, and
that could not have resulted in a takedown of any content. This conclusion makes little
sense. 24
24

See Nimmer, Repeat Infringers, 52 J. Copyr Socy of the U.S.A. at 191. Academic analysis supports this point.
See D.Nimmer. He criticizes Ellison for not respect[ing] the Congressional choice here. He states that [n]either

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More recently, the Eastern District of Virginia incorrectly suggested that the invalid
conduit notices received by Cox were powerful evidence of Coxs knowledge of copyright
infringement. BMG Rights Management (US) LLC v. Cox Communications, Inc., 2015 WL
7756130 (E.D. Va. Dec. 1, 2015). For the reasons discussed above, DMCA notices (even valid
notices) are merely allegations that should not be deemed to provide actual knowledge of
infringement. The court noted that Cox deemed the notices DMCA-compliant and forwarded
them on to its account holders. Id. at n. 19. But to increase the risk of liability on a service
provider that takes steps beyond what is required under section 512 creates a perverse incentive
to do less than a service provider was otherwise willing to do. While ultimately Coxs discussion
of the invalid notices was dictum, the judicial analysis wrongly conflates section 512s notice
and takedown and repeat infringer requirements and must be corrected. 25
The courts analyses in these cases is problematic, as it encourages rights holders to
continue abusing the notice-and-takedown process by sending invalid notices to conduit
providers. Congress never intended for the conduit safe harbor to be conditioned on notices, and
cases that manufacture this requirement are essentially rewarding rights holders repeated
exploitation of the statute.
V.

Members of the Public Should Not Lose Their Right To Use The Internet
Based on Allegations of Copyright Infringement. [NOI Questions 22 and 23]

Questions 22 and 23 of the NOI ask about the effectiveness of the repeat infringer
policies referenced in section 512(i)(A) and whether the law provides sufficient clarity as to what
constitutes a repeat infringer. The NOI also asks what should be done to make the repeat
infringer policy more clear.
Due to the heightened role that internet access and, increasingly wireless internet access,
play in modern life, termination of access is no longer a reasonable requirement for a service
provider relying on the liability limitations of section. If the repeat infringer policy is to remain
in the statute, the law should not allow mere allegations of copyright infringement by interested
parties to trigger such termination. Thus, even in circumstances where DMCA notices are served
outside the conduit function, and considered valid under section 512 (b), (c), or (d), termination
of internet access is unreasonable and inappropriate.
A.

Internet Access, and Increasingly Wireless Internet Access, Is Paramount to

Function in Modern Life and Protected by the First Amendment.

Just as the internet itself became ubiquitous at the end of the last millennium, the use of
smartphones for mobile internet access has become ubiquitous at the beginning of the new one.
the text nor legislative history of Section 512(i) suggests that compliance with the future oriented repeat infringers
policy requires a functioning, publicly known email address. Id. Rather, that requirement is for different
requirements of section 512. Id. at 92 (emphasis in original).
25

CTIA has not examined the record of those communications or Coxs actions, and thus takes no position on this
aspect of the courts opinion.

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According to Pew Research, nearly two-thirds of all Americans now own a smartphone. 26 The
ability to check ones bank balance or schedule a doctors appointment from ones smartphone
are common necessities of modern life that rely upon internet access, and increasingly, the
mobile broadband access offered by CTIAs members. In fact, a study from 2015 showed that
American smartphone owners used their phones to perform the following array of functions:
62% look up information about a health condition, 43% look up information about a job, 40%
looked up government services or information, and 30% took a class or retrieved educational
content. 27
While the right to use ones phone to perform everyday functions necessary to move from
one task to the next, may not be enshrined in the Constitution, the ability to access the internet to
send and receive ideas is protected by the First Amendment. Although First Amendment
jurisprudence often focuses on the speakers ability to communicate her ideas, there is also a
substantial body of precedent that establishes the concomitant right to receive ideas and
information. As early as 1923, the Supreme Court found that the Constitution protects the right
of the individual ... to acquire useful knowledge. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Nearly six decades later, the Supreme Court further recognized that the right to receive
information follows ineluctably from the senders First Amendment right and is a necessary
predicate to the recipients meaningful exercise of his own rights of speech, press, and political
freedom. Board of Education v. Pico, 457 U.S. 853, 867 (1982).
In todays world, the right to convey and obtain information is centered on access to the
internet. From news reports, blogs, and social media postings to candidates websites,
fundraising emails, and tweets, the internet is now central to political life. To deny ones ability
to access these communications and messaging channels undoubtedly threatens First
Amendment rights.
B.

The Sanction of Extra-Judicial Termination of Internet Access Has No

Proper Place in Section 512, Particularly with Respect to Provision of the
Conduit Function and When Considering General Principles of Equity.

For the reasons set forth in Part II above, the requirement that service providers terminate
internet access for repeat infringers has no place in the provision of the conduit function.
Yet even outside the conduit function, given societys ever increasing reliance on the
internet, termination by an internet service provider of a users internet access is no longer an
appropriate remedy for infringement. The consequences of disconnection go far beyond mere
inconvenience and are likely to result in real economic and social harm. And the severity of
these consequences has only increased since the passage of the DMCA, as the internet has
become more intertwined in Americas day-to-day activities and obligations. Thus, for the
reasons detailed below, determinations related to repeat infringers should not be relegated to
service providers absent a court order.

26

See Pew Research Center, U.S. Smartphone Use in 2015, at 1 (April 2015)
http://www.pewinternet.org/2015/04/01/us-smartphone-in-use2015/.
27
Id. at 5-6.

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Given the nature of the rights at stake, any removal of internet access should be based on
proven infringement, not mere allegations. Internet service providers are technology companies,
not adjudicators and should not be charged with determining whether an allegation of
infringement constitutes actual infringement, and ultimately deciding whose rights will be lost.
They are not equipped to obtain or weigh evidence, nor are they in a position to make integral,
but complex legal determinations. Nor should they be. It is beyond dispute that copyright
holders and alleged copyright holders blanket service providers with massive numbers of notices
of alleged infringement, many of which have proven to be defective, inaccurate, misleading, or
fail to account for fair use. 28 Because of the nature of the rights that are in jeopardy, significant
process is due. Cf. Mathews v. Eldridge, 424 U.S. 319 (1976) (quantum of process that is
due depends on the private interest involved, the risk of erroneous deprivation and the
potential benefits of additional protection, and the government interest and burdens of additional
procedural protection). Here, given the nature of the right at stake, requiring an internet service
provider to act on mere allegations by an interested party, even if fully sworn (which section 512
notices are not) falls far short of satisfying this balancing standard, particularly given the
significant nature of the potential deprivation.
Thus, DMCA notices, even in circumstances outside the conduit context where they are
valid, should not trigger termination because a notice of infringement does not constitute
evidence of actual infringement. It is simply a claim or an allegation of infringement by a
copyright owner or its agent. Congress recognized this important distinction in its drafting of
section 512, and was careful to differentiate between a notification of claimed infringement,
e.g., sections 512(c)(1)(C), 512(c)(3)(A), and actual infringement, e.g., sections 512(i)(1)(A),
512(f) (discussing claims of infringement that prove wrongful) D. Nimmer, Repeat Infringers, 52
J. Copyr Soc. U.S.A. 167, 175-184 (2005) (Congress carefully delineated the difference
between allegation and proof of infringement).
Regardless of whether the infringement in question occurred in the conduit context or
whether the Court applied the correct legal analysis to determine actual versus alleged
infringement, the mandated termination of service by a conduit provider is not a proper judicial
remedy under the general principles of equity. It is well established that injunctive relief
should be no broader than necessary to provide full relief to the aggrieved party. Meyer v.
CUNA Mut. Ins. Socy, 648 F.3d 154, 170 (3d Cir. 2011); see also PBM Products, LLC v. Mead
Johnson & Co., 639 F.3d 111, 128 (4th Cir. 2011) (observing that an injunction may address
only the circumstances of the case).
In the context of 512(a), this principle makes clear that injunctions terminating all
internet service are inappropriate, as they are overbroad and disproportionate to the harm. It is
one thing to say that the right to post infringing material on a website can be terminated based on
a proper judicial order. In that circumstance, the infringer has lost only an ability to post
infringing material, i.e., to engage in the exact conduct that caused the violation. It is a marked
step further to terminate all internet access, depriving the user of a host of rights and abilities that
have nothing to do with the objectionable conduct.

28

See generally Urban et. al, Notice and Takedown in Everyday Practice at 81-96 (providing quantitative analysis
that estimates takedown requests of questionable validity).

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In any other context, no one would suggest that an appropriate remedy for copyright
infringement would involve deprivation of the ability to file taxes or apply for a student loan.
Nor would anyone suggest that an infringer should lose her First Amendment rights. It is no less
harmful to impose the same penalties in the online context. Where deprivation of internet access
is concerned, these unreasonable outcomes are direct consequences of termination. 29 Thus, in
view of these improper and unintended but unavoidable consequences, section 512 should be
amended to make clear that internet service providers serving as conduits should not be required
to terminate repeat infringers and should not be subjected to injunctions requiring them to cut off
conduit service to accused or adjudicated infringers. 30

29

Copyright holders might suggest that an infringer whose account is terminated could obtain service from another
provider and avoid the consequences discussed in the text. To the extent this is true, it would suggest that the
remedy is ineffective, which equally would be a basis for its removal from the statute.
30

CTIA takes no position as to whether a court of competent jurisdiction can or should enjoin an adjudicated
infringer from obtaining or using Internet service. That issue is beyond the scope of Section 512, which is directed
to providers.

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CONCLUSION
CTIA appreciates the opportunity to comment on these important issues and respectfully
asks the Register to recognize the continued importance of the liability limitations contained in
section 512 and the inappropriateness of any requirement that internet access be terminated other
pursuant to appropriate judicial order.
Respectfully submitted,

/s/ Thomas C. Power

Thomas C. Power
Senior Vice President, General Counsel
Maria L. Kirby
Associate General Counsel & Assistant Vice
President of Regulatory Affairs
Kathryn B. DallAsta
Associate Counsel
CTIA
1400 16th Street, N.W., Suite 600
Washington, DC 20036
(202) 736-3200

April 1, 2016

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