Supreme Court Not Expected to Provide Much DMCA Certainty
Some of the gray legal issues for the Digital Millennium Copyright Act aren't likely to become more black and white in the near future, with the Supreme Court unlikely to take up one petition for writ of certiorari filed last week on safe harbor issues and no looming good test cases for a host of others, copyright experts said. District Court rehearing of BMG's copyright complaint against Cox, which was to start this week after last week's settlement, pre-empted a 4th U.S. Circuit Court of Appeals remand and decision that the cable operator wasn't entitled to safe harbor protections (see 1808240013).
One issue the high court is likely to take up if an appeal reaches it is the apparent contradiction between Section 512 provisions indicating ISPs need some kind of repeat infringer policy that includes termination of their internet access to qualify for safe harbor protection, and the court's 2017 Packingham v. North Carolina that a North Carolina law denying convicted sex offenders access to social media violates the First Amendment, said Public Knowledge Policy Counsel Meredith Rose. She said it would be surprising if that issue doesn't get litigated because it carries "huge implications" for the DMCA regime. She said that issue possibly wasn't a major part of BMG v. Cox because Packingham came too far in the litigation. Cox had pointed to Packingham in a filing with the 4th U.S. Circuit Court of Appeals (see 1706270070). Rose said there are gray issues on BMG, about how much a party alleging copyright violations has to prove or whether generalized accusations are enough to trigger ISP obligations that could be the subject of future litigation by others.
As courts continue to struggle with repeat infringer issues under DMCA, the Supreme Court someday may feel the need to weigh in on that issue, said Terry Hart, Copyright Alliance vice president-legal policy and copyright counsel. During BMG vs. Cox oral argument at the 4th Circuit, judges seemed to be struggling with how to interpret that part of the statute without guidelines, he said.
"The lower courts are in a state of DMCA disarray," with what would be clearly illegal "abject bootlegging" in the offline world given immunity in the online world when conducted by online service providers-turned-publishers, Ventura Content said in its docket 18-235 cert petition last week. The adult content producer and distributor said the 9th Circuit's decision that adult content sharing site Motherless.com was entitled to safe harbor protections for sharing copyrighted Ventura content conflicts with 2nd and 7th Circuit decisions. Lower courts, afraid of hurting the online ecosystem, "have instead given birth to a new monster" of online service providers that knowingly publish infringing content and have no written policies for terminating repeat infringers, Ventura said. Motherless' appellee response is due Sept. 24; outside counsel didn't comment.
It would be surprising if the Supreme Court took up Ventura unless it really has issue with the 9th Circuit decision, Rose said. She said Ventura doesn't present the unavoidable constitutional issues or deep circuit split -- with multiple circuit courts going in markedly different directions -- that mark a case with good prospects of getting the justices' attention. "It's really jockeying for airtime" with big separation of powers and policing powers issues potentially before the court, she said. Echoed Hart, Ventura doesn't have the traditional indicators of a case cert worthy, such as an issue that has come up repeatedly in lower courts.
The Ventura petition "did the best job it could" to show a circuit court conflict but overstates the conflict and isn't likely to persuade the Supreme Court, Santa Clara University High Tech Law Institute co-Director Eric Goldman said. He said the court rarely takes up online copyright issues, and in exceptions such as Grokster and Aereo, safe harbor hasn't played a role, so it's not clear what case will be the one to bring DMCA issues before the court.
University of Idaho law professor Annemarie Bridy tweeted she "would be very surprised" if Ventura were the first occasion for a Supreme Court review of DMCA. She said it's incorrect to argue that DMCA safe harbors are predicated on the idea that all eligible providers must be "neutral information conduits,' since only Section 512(a) providers -- covering transitory digital network communications -- are defined that way in the statute.
That DMCA hasn't come up before the Supreme Court might reflect that when it was passed in 1998 fewer groups were active in digital consumer rights and copyright, Rose said. If such legislation were passed today, it would be much more likely to be instantly subject to litigation, she said. The last time DMCA was in front of the court was the 9th Circuit's Lenz v. Universal Music decision in 2015, which the Supreme Court opted not to take up after the solicitor general recommended against granting cert, Hart said.