The FCC, the DMCA, and why takedown notices are not enough

Hastings Law Journal

Volumn 61, Issue 1, 2009, Pages 233-274

  Murtagh, Michael P ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 73849145105     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (334)

1. JOHN5 LOGIE, PEERS, PIRATES, AND PERSUASION 6 (2006);
2. see also LAWRENCE LESSIO, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY, at xv-xvi (2008) (describing the war on piracy which "threatens" the "survival" of "certain important American industries").
3. See 17 U. S. C. § 106 (2006) (providing for the exclusive rights of the copyright holder); YOCHAI BENKLER, THE WEALTH OF NETWORKS 57 (2006) ("By the end of the twentieth century, copyright was longer, broader, and vastly more encompassing than it had been at the beginning of that century.").
4. See generally U. S. COPYRIGHT OFFICE, COPYRIGHT BASICS (2008), available at http://www.copyright.gov/circs/ circoi.pdf.
5. See NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX 86 (2008);
6. see also JESSICA LITMAN, DIGITAL COPYRIGHT 154 (2006) ("MP3 is a patented file-compression format that permits near-CD quality recordings to be reproduced in files of manageable size. Freely available software allows consumers to translate the musical recordings on commercial CDs to MP3 files on a computer hard disk, and play the music through the computer's speakers. Because MP3 files have been compressed, it is feasible to store large numbers of files on a typical computer hard disk, and to transmit high-quality recordings over the Internet. Consumers can download entire music libraries over their telephone lines.").
7. NETANEL, Supra note 3.
8. SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 151-52 (2001) (using the phrase "digital moment" to describe the combination of the digitization of expression and the rise of networks).
9. Chuck Philips, Piracy: Music Giants Miss a Beat on the Web, L. A. TIMES, July 17, 2000, at A1 ("' This is a very profound moment historically, 'Time Warner President Richard Parsons says. 'This isn't just about a bunch of kids stealing music. It's about an assault on everything that constitutes the cultural expression of our society. If we fail to protect and preserve our intellectual property system, the culture will atrophy. And corporations won't be the only ones hurt. Artists will have no incentive to create. Worst-case scenario: The country will end up in a sort of cultural Dark Ages.");
10. see also LAWRENCE LESSIG, CODE 2.0, at 173 (2006) [hereinafter LESSIG, CODE 2.0] (calling "digital technologies and the Internet" the "perfect storm" for copyright holders, and noting that because "they made money by controlling the distribution of 'copies' of copyrighted content, you could well understand why they viewed the Internet as a grave threat"). Napster was estimated to have eighty-million users before it was shut down. LOGIE, supra note 1. By 2006, the number of Americans using file-sharing programs had increased to a point where it "dwarfed Napster's purported totals." Id. Efforts to stop file sharing seemingly led to its popularity. See LAWRENCE LESSIG, THE FUTURE OF IDEAS 130-32 (2001) [hereinafter LESSIG, FUTURE OF IDEAS] (noting that the number of users went from under two-hundredthousand to over fifty-seven-million after the RIAA's lawsuit against Napster became public).
11. See Justin Hughes, On the Logic of Suing One's Customers, 22 CARDOZO ARTS ENT. LJ. 725, 737 (2005) ("Lots of people will take something for free even if they would never pay for the same thing. That's how party favors and much of modern marketing works.").
12. LESSIG, CODE 2.0, supra note 6, at 337. One independent study put the total economic loss to the United States economy from sound recording piracy at $12.5 billion annually. See STEPHEN E. SIWEK, INST, FOR POUCY INNOVATION, THE TRUE COST OF SOUND RECORDING PIRACY TO THE U. S. ECONOMY 188 (2007), available athttp//www.ipi. Org/IPI/IPIPublications.nsf/ PublicationLookupFullTextPDF/51CC65 A1D4779E4086257 33Eoo529174/$File/ SoundRecordingPiracy.pdf.
13. Recording Industry to Discontinue Litigation Program, Cites Changing Marketplace, 77 U. S. L. W. 2392 (2009) [hereinafter Changing Marketplace]; Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, WALL ST. J., Dec. 19, 2008, at B1, available at http://online.wsj.com/article/SB122966038836021137.html;
14. see also Kristen Schweizer & Adam Satariano, Record Labels Make ISPs 'Copyright Cops' for Piracy (Update 1), BLOOMBERG.COM, Feb. 13, 2009, http://www.bloomberg.com/apps/news?pid=20601088&sid= axEjcX82Yp.8&refer=muse.
15. Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1233 (D. C. Cir. 2003). Verizon objected to the RIAA's subpoenas, arguing that the Digital Millennium Copyright Act's (DMCA) takedown provision "does not apply to an ISP acting merely as a conduit for an individual using a P2P file sharing program to exchange files." Id. The D. C. Circuit Court of Appeals agreed, holding that the subpoenas directed at it were unauthorized because the DMCA's section 512 (a) safe-harbor provision protected ISPs from having to respond to subpoenas when they were only involved in transmission of data. Id. at 1235. In 2003, SBC actually encouraged its subscribers to download their own music collection. Seth Schiesel, SBC Won't Name Names in File-Sharing Cases, N. Y. TIMES, Sept. 16, 2003, at C1, available at http://query.nytimes.com/gst/fullpage.html?res= 9F03E3D7163AF935A2575AC0A9659C8B63.
16. See Christopher S. Yoo, Network Neutrality and the Economics of Congestion, 94 GEO. L. J. 1847, 1862-63 (2006) (discussing how the increasingly heterogeneous content and uses of the internet have placed unprecedented demands on networks); Robert McDowell, Who Should Solve litis Internet Crisis, WASH. POST, July 28, 2008, at A 17, available at http://www.washingtonpost.com/wp-dyn/content/article/20o8/ 07/27/AR2008072701172.html?refeneer=emailarticle ("At peak times, 5 percent of Internet consumers are using 90 percent of the available bandwidth because of the P2P explosion. This flood of data has created a tyranny by a minority. Slower speeds degrade the quality of the service that consumers have paid for and ultimately diminish America's competitiveness globally.").
17. In re Formal Complaint of Free Press & Pub. Knowledge Against Comcast Corp., 23 F. C. C. R. 13028 ¶6 (2008) (memorandum opinion & order) [hereinafter Comcast Order];
18. see Joseph Schleimer, Protecting Copyrights at the "Backbone" Level of the Internet, 15 UCLA ENT. L. REV. 139, 145 (2008) ("As a competitive matter, the ISPs must start licensing entertainment content or risk a loss of their customer base to competitors who do provide entertainment."); Changing Marketplace, supra note 9 (noting shared business interests between ISPs and the RIAA).
19. Rebecca Giblin, A Bit Liable: A Guide to Navigating the U. S. Secondary Liability Patchwork, 25 SANTA CLARA COMPUTER A HIGH TECH. L. J. 7, 8 (2008).
20. Id. at 9-10.
21. See infra Part II. A.1.
22. Comcast Order, supra note 12, ¶ ¶ 6, 48, 54;
23. Peter Svensson, Comcast Blocks Some Internet Traffic, MSNBC. COM, Oct. 19, 2007, http://www.msnbc.msn. com/id/21376597/.
24. LESSIG, FUTURE OF IDEAS, supra note 6, at 34-41 (describing the end-to-end principle of network design and how it "effects a neutral platform-neutral in the sense that the network owner can't discriminate against some packets while favoring others... The network will remain neutral regardless of the application, " and comparing this end-to-end design to an electricity grid or a road); Lawrence Lessig, The Architecture of Innovation, 51 DUKE L. J. 1783, 1789 (2002) [hereinafter Lessig, Architecture].
25. AFP, French web pours scorn on anti-piracy plans, Mar. 10, 2009, available at http://www.google.com/hostednews/afp/article/ALeqM5iEycpBP- 6skclEzwA5V00Onhlq6w; John Drinnan, Media: ISPs Throwing Pirates Overboard, N. Z. HERALD, Mar. 13, 2009, http://www.nzherald.co.nz/ business/news/article.cfm?cJd=3&objectid=i056i373&ref=emailfriend; Georgie Rogers, Government Gets Tough, BBC, Jan. 29, 2009, http://www.bbc.co.uk/6music/news/20090129-ISP-report.shtml; Mark Ward, Net Firms Reject Monitoring Role, BBC News, Feb. 15, 2008, http://news.bbc.c0. Uk/2/hi/technology/7246403.stm;
26. see John Hearne, Ireland's Largest ISP to Start 'Throttling' Illegal Downloaders, CHRISTIAN SCI. MONITOR, July 24, 2009, at 6, available at http://www.csmonitor.com/2009/0724/po6s10- wogn. html; Bruce Crumley, France Cracks Down on Internet Downloads, TIME, Mar. 12, 2009, http://www.time.com/time/world/article/o, 8599, 1884812, 00.html; Posting of Bruce Gain to Intellectual Property Watch Blog, French Legislature Puts Finishing Touches on Ambitious File-Sharing Law, http://www.ip-watch.org/weblog/2009/o2/23/french-legislature-putsfinisbing- touches-on-ambitious-file-sharing-law/(Feb. 23, 2009, 11:14 am); Angela Gunn, Quelle Horreur: French President Wants to Chop Net Access for Alleged Downloaders, BETANEWS, Mar. 12, 2009, http://www.betanews.com/ article/Quelle-horreur-French-president-wants-to-chop-net-access-foralleged- downloaders/1236897409.
27. Greg Sandoval, Sources: AT & T, Comcast May Help Foil Piracy, CNET News, Jan. 28, 2009, http://news.cnet.com/8301-1023-3-10151389-93.html.
28. FCC Broadband Network Management, http://www.fcc.gov/broadband-network- management/(last visited Oct. 4, 2009).
29. See Press Release, FCC, Commission Seeks Public Input on Draft Rules to Preserve the Free and Open Internet (Oct. 22, 2009), available at http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-294159A1.pdf.
30. LESSIG, CODE 2.0, supra note 6, at 111; see Jonathan Zittrain, The Generative Internet, 119 HARV. L. REV. 1974, 1988-89 (2006). The edges, or ends, are the applications at the end of the network connection. See Lessig, Architecture, supra note 17 (describing end-to-end principle as "simple networks, smart applications"); Glossary.com, End to End Principle Reference, http://www.glossary.com/reference.php?q=End+to+end+principle (last visited Oct. 4, 2009) (defining end-toend principle as"'[D]umb, minimal, network' with smart terminals").
31. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET-AND HOW TO STOP IT 28 (2008) [hereinafter ZITTTRAIN, FUTURE]; see Zittrain, supra note 22, at 1978, 2029.
32. Lessig, Architecture, supra note 17, at 1978; see Zittrain, supra note 22, at 2029; Network Neutrality FAQ, http://timwu.org/ network-neutrality.html (last visited Oct. 4, 2009).
33. ZITTRAIN, FUTURE, supra note 23, at 111;
34. Lessig, Architecture, supra note 17, at 1789. This same principle is generally observed regarding telecommunications networks. See YOCHAI BENKLER, RULES OF tHE ROAD FOR THE INFORMATION SUPERHIGHWAY: ELECTRONIC COMMUNICATIONS AND THE LAW § 16.2 (1996). Benkler notes that telecommunications networks are "bulk based services, whose primary function in the network is to carry as much traffic as possible over the greater portion of its way." Id.;
35. see also ABA SECTION OF ANTITRUST LAW, TELECOM ANTITRUST HANDBOOK 5 (2005) ("All communications networks share a common purpose: to transmit information from one point to another."); Susan Crawford, Transporting Communications, 89 B. U. L. REV. 871, 873-74 (2009) ("The founders of United States communications law chose to allow private companies in the telegraphy and telephone business to provide general-purpose communications services subject to a key regulatory requirement: non-discrimination against particular sources of messages or particular message content.").
36. Network Neutrality FAQ, supra note 24;
37. see also LESSIO, FUTURE OF IDEAS, supra note 6, at 34-41 (describing the end-to-end principle of network design and how it "effects a neutral platformneutral in the sense that the network owner can't discriminate against some packets while favoring others.... The network will remain neutral regardless of the application. "); Lawrence Lessig & Robert W. McChesney, No Tolls on the Internet, WASH. POST, June 8, 2006, at A23 ("The owners of the Internet's wires cannot discriminate.... All of the intelligence and control is held by producers and users, not the networks that connect them.").
38. LESSIO, FUTURE OF IDEAS, supra note 6, at 34-41. Lessig contrasts cars on roads with airplanes in the sky; unlike cars, airplanes must register flight plans, or they will be denied permission to fly. Id.
39. ZITTRAIN, FUTURE, supra note 23, at 27.
40. LESSIG, CODE 2.0, supra note 6, at 111;
41. Lessig, Architecture, supra note 17, at 1789 ("Innovators thus knew that, if their ideas were wanted, the network would run them; that this network was architected never to allow anyone to decide what would be allowed.").
42. LESSIO, CODE 2.0, supra note 6, at 44.
43. Comcast Order, supra note 12, ¶12 (quoting 47 U. S. C. § 230 (a) (2) (2006)).
44. Id. (quoting 47 U. S. C. § 230 (a) (4)).
45. BENKLER, supra note 2, at 1.
46. Id. at 7.
47. In re Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 F. C. C. R. 14986 (2005) (policy statement) [hereinafter Internet Policy Statement].
48. FCC Broadband Network Management, supra note 20; see 47 U. S. C. §§ 157, 230 (b) (2006). The FCC is charged with "regulating interstate and foreign commerce in communication by wire and radio."Id. 7sect; 151. The FCC's jurisdiction to regulate broadband is documented under various bases. Internet Policy Statement, supra note 35, ¶¶ 2, 4; Comcast Order, supra note 12, ¶¶ 12-27 (providing multiple grounds for FCC's jurisdiction in the Comcast dispute); Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, 20 F. C. C. R. 14853, 196 (2005) (report, order, and notice of proposed rulemaking) [hereinafter Wireline Broadband Order]. The Supreme Court agrees that the FCC has the authority to regulate broadband. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U. S. 967, 976, 996 (2005) ("[T]he Commission has jurisdiction to impose additional regulatory obligations... [and] remains free to impose special regulatory duties on facilities-based ISPs under its Title 1 ancillary jurisdiction. ");
49. see also 47 U. S. C. § 157 (discussing policy regarding new technologies); Crawford, supra note 25, at 911-12 n. 205 (discussing the FCC's ancillary authority).
50. Internet Policy Statement, supra note 35, ¶4.
51. Id.¶5.
52. See Press Release, FCC, supra note 21. There is also a pending bipartisan bill in the House of Representatives which would enact the net neutrality principles espoused in the Internet Policy Statement. See Internet Freedom Preservation Act of 2009, H. R. 3458, 111 th Cong. (2009);
53. Marguerite Reardon, Net Neutrality Still Faces Political, Legal Hurdles, CNET News, Oct. 24, 2009, http://news.cnet.com/8301-30686-3- 10381620-266J1tml. These efforts have inspired opposition, most notably from Senator John McCain, who recently proposed legislation to strip the FCC of its jurisdiction to regulate the internet. See Internet Freedom Act of 2009, S. 1836, 111th Cong. (2009) ("The Federal Communications Commission shall not propose, promulgate, or issue any regulations regarding the Internet or IP-enabled services."); Joelle Tessler, FCC Votes to Begin Crafting "Net Neutrality" Rules, msnbc.com, Oct. 22, 2009, http://www.msnbc.msn. com/id/33434714/ns/technology-and-science-tech-and- gadgets/;
54. see also Nate Anderson, House, Senate Get Separate Bills to Kill Net Neutrality, ARS TECHNICA, Oct. 30, 2009, http://areteclmica.com/tech-policy/news/2009/10/house-senate-get-separatebills- to-kill-net-neutrality.ars.
55. Internet Policy Statement, supra note 35, ¶ 4 (footnote omitted).
56. Id. ¶5 n. 15.
57. Comcast Order, supra note 12.
58. See Letter from Lawrence Lessig & Tim Wu, Professors of Law, to Marlene H. Deutch, Secretary, FCC (Aug. 22, 2003), available at www.freepress.net/files/wu-lessig-fcc.pdf. For further discussion of this argument, see JONATHAN D. HART, INTERNET LAW: A FIELD GUIDE 750 (5th ed. 2007) ("Some characterize net neutrality regulation as 'a solution in search of a problem'...."); Press Release, FreedomWorks, Internet Neutrality: A Solution in Search of a Problem (Feb. 7, 2006), available at http://www.freedomworks.org/press-releases/internet-neutrality-a-solution-in- search-of-a-prob.
59. Press Release, FreedomWorks, supra note 43.
60. HART, supra note 43.
61. Comcast Order, supra note 12, ¶¶ 7, 8; Posting of Brad Stone to New York Times Bits, Comcast: We're Delaying, Not Blocking, BitTorrent Traffic, http://bits.blogs.nytimes.com/2007/10/22/comcast-were-delaying-not- blocking-bittorrent-traffic/?scp=5&sq=bittorrent&st-cse (Oct. 22, 2004, 21:41 EST); Svensson, supra note 16.
62. Comcast Order, supra note 12, ¶ 8.
63. Id. ¶¶ 3, 8-10.
64. Svensson, supra note 16.
65. See Formal Complaint, In re Formal Complaint of Free Press & Pub. Knowledge Against Comcast Corp., 23 F. C. C. R. 13028 (2008) (No. 07-52), available at www.publicknowledge.org/pdf/fp-pk-comcast-complaint. pdf.
66. Comcast Order, supra note 12, ¶ 9;
67. Declan McCullagh, FCC Formally Rules Comcast's Throttling of BitTorrent Was Illegal, CNET NEWS, Aug. 1, 2008, http://news.cnet.com/8301-13578-3-10004508-38.html.
68. See Internet Policy Statement, supra note 35, ¶ 5 n. 15.
69. Comcast Order, supra note 12, ¶ 1;
70. see also Matthew Lasar, Cable and Telcos Side with Comcast in FCC BitTorrenl Dispute, ARS TECHNICA, Feb. 19, 2008, http://arstecnnica.com/old/content/2008/02/cable-and-telcos-side-with-omcast-in- fcc-bittorrent-dispute.ars (summarizing the statements of the interested parties).
71. Comcast Order, supra note 12, ¶ 41.
72. Id. ¶48. Comcast agreed to stop its practices by the end of 2008, and was required to make various disclosures to ensure that it lived up to its commitment. Id. ¶ 54.
73. Id. ¶47.
74. Id. ¶49.
75. Id. 7para;¶49, 50.
76. Id. ¶50.
77. This Note is primarily concerned with the legality of an ISP-RIAA collaboration. Thus, the discussion in this section of the problem the collaboration addresses will be minimal. Further, this Note will not consider the practical effectiveness of the ISP-RIAA collaboration. For a discussion of the effectiveness of threatening to revoke network privileges in deterring file sharing, see Yuval Feldman & Janice Nadler, The Law and Norms of File Sharing, 43 SAN DIEGO L. REV. 577, 606 (2006).
78. See supra notes 1-8 and accompanying text.
79. ISPs had a dual layer of immunity from copyright infringement. They were immune from direct infringement liability where they had no knowledge of the infringing activity. Religious Tech. Servs. v. Netcom, 907 F. Supp. 1361, 1370-71 (N. D. Cal. 1995). Further, if a successful case for direct or indirect liability were made against an ISP, the first DMCA safe harbor would protect them. See 17 U. S. C. § 512 (a) (2006) (providing a safe harbor from contributory copyright infringement for online service providers involved in transmission of data);
80. see also CHARLES H. KENNEDY, AN INTRODUCTION TO U. S. TELECOMMUNICATIONS LAW 145-49 (2d ed. 2001) (discussing ISP's liability for infringement and the DMCA safe harbors).
81. Comcast Order, supra note 12, ¶5 ("Peer-to-peer applications, including those relying on BitTorrent, have become a competitive threat to cable operators such as Comcast because Internet users have the opportunity to view high-quality video with BitTorrent that they might otherwise watch (and pay for) on cable television. ");
82. see also Schleimer, supra note 12, at 144-45;
83. Yoo, supra note 11 (discussing demands on networks); McDowell, supra note 11 (discussing congestion problems); Changing Marketplace, supra note 9 (noting that copyright holders and ISPs share business interests).
84. Copyright laws are widely disobeyed. See Feldman & Nadler, supra note 60, at 579 (noting that traffic laws, tax laws, and copyright laws are widely ignored);
85. see also LESSIG, supra note 1, at 110-14 (describing how normal children have been cast as criminals for their widespread file sharing and asking whether "the next ten years [should) be another decade-long war against our kids?").
86. For instance, legitimate, licensed content distributors use BitTorrent to distribute purchased videos. See Comcast Order, supra note 12, ¶¶ 4, 42 (discussing Vuze, one such service, and noting that CBS, Twentieth Century Fox, and Sports Illustrated use BitTorrent to distribute content). Further, popular computer game developer Blizzard uses BitTorrent to distribute content to its customers. See Blizzard Entertainment-Blizzard FAQ, http://us.blizzard.com/en-us/company/about/legal-faq.html (last visited Oct. 4, 2009);
87. Blizzard Downloader-WoWWiki-Your Guide to the World of Warcraft, http://www.woww.com/Blizzard-Downloader (last visited Oct. 4, 2009);
88. see also Comcast Order, supra note 12, 142 (discussing how Comcast's conduct interfered with a subscriber's World of Warcraft patch).
89. Opening Statement of Comm'r Robert M. McDowell, Second Public En Banc Hearing On Broadband Network Management Practices (Apr. 17, 2008), http://hra-aunfoss.fcc.gov/edocs-public/attachmatch/DOC-281646A1.pdf; McDowell, supra note 11;
90. see also William Triplett, MPAA, RIAA Going Steady with ISPs, VARIETY, Apr. 24, 2008, http://www.variety.com/article/ VR1117984591.html?categoryid=16&cs-1 ("[P]iracy, the bane of the entertainment industry... has also caused problems for Internet service providers. Slowdowns and congestion in ISP pipes are due to heavy bandwidth use, much of which involves large files of pirated content.").
91. Changing Marketplace, supra note 9 (alteration in original).
92. See McDowell, supra note 11 (discussing congestion problems caused by high bandwidth users, referring to it as "tyranny by a minority").
93. Kenneth Corbin, The RIAA's About-Face on Lawsuits, INTERNET NEWS, Dec. 22, 2008, http://www.internetnews.com/bus- news/article.php/3792831/The+RIAAs+AboutFace+on+Lawsuits.htm; Schleimer, supra note 12, at 144-45
94. Schweizer & Satariano, supra note 9.
95. Sandoval, supra note 19.
96. Id.; Greg Sandoval, Comcast, Cox Cooperating with RIAA in Antipiracy Campaign, CNET NEWS, Mar. 25, 2009, http://news.cnet. com/8301-1023-3-10204047-93.html.
97. 17 U. S. C. § 512 (c) (3) (2006). For an example of the type of notice the RIAA will send to the ISP, see Greg Sandoval, Copy of RIAA's New Enforcement Notice to ISPs, CNET NEWS, Dec. 19, 2008, http://news.cnet.com/8301-1023-3-10127050-93.html.
98. Sandoval, supra note 19. Both AT & T and Charter Communications send letters saying they may suspend or terminate service, although AT & T calls that language just "boilerplate." See Greg Sandoval, How Charter Communications Warns Accused File Sharers, CNET NEWS, Apr. 19, 2009, httpy/news.cnet.com/830i-i023-3- 10222853-93.html?tag=mncol. For a copy of the letter that Charter Communications sends to suspected infringers, see id.
99. Sandoval, supra note 19.
100. Schweizer & Satariano, supra note 9. Note that there are recent indications that these collaborations have not yet taken effect and that ISPs claim that they might not want to terminate subscribers' connections under a graduated response program. Greg Sandoval, Six Months Later, No ISPs Joining RIAA Piracy Fight, CNET NEWS, June 3, 2009, http://news.cnet.com/8301-1023-3-10256481-93.html. However, the RIAA still wants to pursue these programs and is still working steadily with ISPs to reach deals. Id. Additionally, many DMCA takedown notices have been forwarded to subscribers, with a corresponding deterrent impact. Id.
101. Internet Policy Statement, supra note 35, ¶5 n. 15; Comcast Order, supra note 12, ¶¶45, 54.
102. Webopedia.com, Network Management, http://www.webopedia.com/TERM/N/ network management.html (last visited Oct. 4, 2009);
103. CISCO SYS., INTERNETWORKING TECHNOLOGY HANDBOOK 6-1, http://www.cisco.com/en/US/docs/ internetworking/technology/handbook/NM-Basics.pdf ("In general, network management is a service that employs a variety of tools, applications, and devices to assist human network managers in monitoring and maintaining networks.").
104. What Is Network Management?, http://www.wisegeek.com/what-is-network- management.htm (last visited Oct. 4, 2009).
105. Kevin Werbach, Only Words, 22 BERKELEY TECH. L. J. 1233, 1280-81 (2007).
106. Comcast Acceptable Use Policy for High-Speed Internet Services (2009), http://www.comcast.net/terms/use/#network [hereinafter "Comcast Acceptable Use Policy"] (last visited Oct. 4, 2009).
107. Comcast Order, supra note 12, ¶ 1.
108. Id. ¶ 49.
109. Schleimer, supra note 12, at 144 (noting that AT & T is considering filtering technology); Sarah M. Preis, Comment, To Regulate or Not to Regulate: The FCC's Authority to Regulate Online Copyright Infringement Under the Communications Act, 2008 U. CHI. LEGAL F. 535, 556-57. Filtering may also be implemented at the user level, but this type of filtering does not take away the consumer's choice of content. See Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 TEX. L. REV. 553, 558 (1998) ("[French law] requires information service providers to offer technical means for users to filter content.").
110. This could certainly fit within the framework of providing the highest quality service to network users and protecting them from harmful congestion. See Comcast Acceptable Use Policy, supra note 81.
111. See Triplett, supra note 66 ("ISPs want to manage traffic better, [RIAA chairman-CEO Mitch Bainwol] said, and one way will be to have 'smart pipes' that will effectively know what content is moving through them. Smart pipes should therefore be able to spot and help stop illegal content.").
112. See Sandoval, supra note 74 (noting the deterrent impact of DMCA takedown notices alone); Triplett, supra note 66 (noting that "smart pipes, " which discriminate against illegal content, would be a more efficient means of managing traffic than a neutral network of "dumb pipes").
113. For a discussion of the deterrent effect of threats to suspend network privileges, see Feldman & Nadler, supra note 60, at 607.
114. I assume here, and throughout this Note, that having fewer users on a network using bandwidth at any given time improves the browsing experience for other users. See McDowell, supra note 11 ("These electronic traffic jams slow the Internet for most consumers.... Slower speeds degrade the quality of the service that consumers have paid for....").
115. See Internet Policy Statement, supra note 35, ¶ 5 n. 15.
116. See supra Part I.
117. LITTMAN, supra note 3, at 84.
118. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).
119. 17 U. S. C. § 107 (2006 & Supp. 2007). For a further discussion of how to weigh the factors in a fair use inquiry, see BENKLER, supra note 25, § 31.3.
120. JOHN SHELTON LAWRENCE & BERNARD TIMBERG, FAIR USE AND FREE INQUIRY: COPYRIGHT LAW AND the NEW MEDIA 1o (2d ed. 1989).
121. Id. Lawrence and Timberg compare the fair use analysis to other concepts, such as the "reasonable, prudent man, " "due process, " "unfair competition, " and "equitable settlement." Id.
122. Fair use is a defense to copyright infringement. See 17 U. S. C. § 107. Filtering technologies may be subdivided into content inspection and traffic analysis. Preis, supra note 84, at 536. Content inspection analyzes the content and compares it to a database of works to determine if it infringes copyright. Id. Traffic analysis allows ISPs to block certain applications. Id. Filtering technology will erroneously interfere with fair uses unless it is somehow trained to accurately spot a fair use. See id.
123. Preis, supra note 84, at 536.
124. Id. at 556-57.
125. LITMAN, supra note 3, at 152-54 (discussing this example).
126. 17 U. S. C. § 1201 (a) (1) - (2).
127. See id. § 1201;
128. see also LITMAN, supra note 3, at 138 (noting that during DMCA drafting+
129. For a thorough discussion of the fair use defense in the DMCA, see generally David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. PA. L. REV. 673, 710-42 (2000).
130. LTTMAN, supra note 3, at 83 (referring to the DMCA's anticircumvention provisions, codified at 17 U. S. C. § 1201, which make it unlawful to circumvent any technological measure designed to protect a work);
131. ZTTTRAIN, FUTURE, supra note 23, at 115 ("Some argue that broad attempts to embed copyright protections in technology fall short because the technology cannot easily take into account possible fair use defenses.").
132. JULIE E. COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 609 (2d ed. 2006).
133. LESSIG, supra note 1, at 100 (internal quotation marks omitted);
134. see also BENKLER, supra note 2, at 17 ("Different technologies make different kinds of human action and interaction easier or harder to perform.").
135. LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TOLOCK DOWN CULTURE AND CONTROL CREATIVITY 160 (2004);
136. see Edward K. Cheng, Structural Laws and the Puzzle of Regulating Behavior, 100 NW. U. L. REV. 655, 710 (2006) (referring to structural and fiat based laws, and noting that "[b]y setting up some structure first-in other words, by making circumvention technologies difficult to obtain-the DMCA makes the latter 'act' prohibition easier to enforce").
137. Reidenberg, supra note 84, at 566.
138. See HART, supra note 43, at 219 (noting that the court in United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1125 (N. D. Cal. 2002), found that the DMCA makes it difficult to engage in fair use);
139. see also LESSIG, supra note 107;
140. Reidenberg, supra note 84, at 566.
141. Comcast Order, supra note 12, ¶31 (emphasis added).
142. See LTTMAN, supra note 3, at 179 (proposing a revision of copyright law so that it is not a law that only copyright lawyers can decipher and follow).
143. See 17 U. S. C. § 512 (c) (3) (v) (2006 and Supp. 2007) (providing that the takedown notice must specify that the copyright holder has a good faith belief that the material is infringing). For an example of the type of notice the RIAA will send to the ISP under the new ISP-RIAA collaboration
144. see Sandoval, supra note 73.
145. In Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 572 (1994), the Supreme Court held that 2 Live Crew's satire of Pretty Woman was protected under the fair use defense. It is conceivable, though, that under the RIAA-ISP's new collaboration, an RIAA representative seeing the transfer of 2 Live Crew's Pretty Woman would think that this was a transfer of a file that made unauthorized use of Roy Orbison and William Dees's original work, and would send a DMCA takedown notice to the ISP.
146. Preis, supra note 84, at 557.
147. Id.
148. Reidenberg, supra note 84, at 556.
149. See supra Part II. A.2.
150. 17 U. S. C. § 512 (c) (3) (A) (v) (2006 and Supp. 2007).
151. See infranotes 124-38 and accompanying text.
152. 17 U. S. C. §512 (h).
153. 17 U. S. C. § 512 (h) (2) provides that one must file a copy of a takedown notification, a proposed subpoena, and a sworn declaration that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under the Copyright Act.
154. 17 U. S. C. § 512 (h) (2) (A) provides that the request must include "a copy of a notification described in subsection (c) (3) (A)." 17 U. S. C. §512 (c) (3) (A) provides the requirements for the DMCA's takedown notices, including, among other things, that the copyright holder identify the material that is claimed to be infringing and has a "good faith belief that the use of the material in the manner is not authorized by the copyright holder, its agent, or the law." (emphasis added).
155. See id. § 512 (h) (2) - (3). Under the DMCA, in order to get an ISP to actually reveal the identity of the user, the RIAA must file a request, including a copy of a notification described in §512 (c) (3) (A), a proposed subpoena, and "a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title."
156. Id. § 512 (h).
157. Declan McCullagh, RIAA Apologizes for Threatening Letter, CNET News, May 12, 2003, http://news.cnet.com/2100-1025-3-1001005.html. Many of the RIAA's mistakes are catalogued.
158. See Electronic Frontier Foundation, Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands, http://www.eff.org/files/20030926-unsafe- harbors.pdf (last visited Oct. 4, 2009) [hereinafter Unsafe Harbors] (cataloguing mistaken and abusive takedown demands, including a subpoena directed at a Romanian student who was out of the country at the time of the alleged infringement and did not own a computer);
159. see also Schweizer and Satariano, supra note 9 (noting that the RIAA has sued a dead woman).
160. Unsafe Harbors, supra note 124, at 2;
161. see MATTHEW RIMMER, DIGITAL COPYRIGHT AND THE CONSUMER REVOLUTION: HANDS OFFMy IPOD 214-16 (2007) (documenting examples of absurd and erroneous RIAA lawsuits).
162. RIMMER, supra note 125, at 215.
163. 17 U. S. C. § 512 (a) - (d).
164. Online service providers are defined at 17 U. S. C. § 512 (k). For the § 512 (a) safe harbor for transmission of data, the term "service provider" means "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received."
165. Id. § 512 (k) (1). The type of ISPs involved in this RIAA collaboration fall within this definition. The second, third, and fourth safe harbors (§ 512 (b) - (d)) are subject to a different definition of online service provider: "a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A)."
166. Id. § 512 (k) (1) (B).
167. Id.§512 (b) - (d).
168. Id §5I2 (b) (2) (E).
169. Neil Weinstock Netanel, Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing, 17 HARV. J. L. and TECH. I, 12 (2003).
170. See id. (noting the in terrorem effect of the DMCA takedown notice);
171. see also supra note 124.
172. KENNEDY, supra note 62, at 148.
173. SEE Mark Lemley and R. Anthony Reese, REDUCING DIGITAL COPYRIGHT INFRINGEMENT WITHOUT RESTRICTING INNOVATION, 56 STAN. L. REV. 1345, 1386 (2004) ("The fact that these intermediaries do not bear the full social cost of taking down challenged content means that enforcing copyright law by requiring them to do so creates negative externalities, tilting the law too far in favor of copyright owners.").
174. Netanel, supra note 131, at 12-13.
175. LESSIG, supra note 1, at 1-5;
176. Nate Anderson, Universal Demands Takedown of Homemade Dancing Toddler Clip;?
177. EFF Sues, ARS TECHNICA July 25, 2007, http://aretechnica.com/tech-policy/news/2007/07/universal-demands-takedown-of- homemade-dancing-toddler-clip-eff-sues.ars.
178. SEE Lemley and Reese, supra note 134, at 1421 n. 293 (collecting examples);
179. Anderson, supra note 136;
180. Unsafe Harbors, supra note 124, at 1-2.
181. See generally Michael Piatek et al., Challenges and Directions for Monitoring P2P File Sharing Networks-or-Why My Printer Received a DMCA Takedown Notice (2008), http//dmca.cs.washington. edu/dmca-hotseco8.pdf (discussing the different ways of detecting one's IP address and why current tracking technology produces a high incidence of false positives).
182. Comcast Order, supra note 12, ¶ 47.
183. See Yoo, supra note 11, at 1862-63 (discussing the unprecedented demands on networks).
184. This, however, is arguable, given the common incidence of mistaken DMCA takedown notices.
185. See supra notes 124-38 and accompanying text.
186. See supra Part II. C
187. Lemley and Reese, supra note 134, at 1421 (referring to FED. R. CIV. P. 11).
188. Triplett, supra note 66;
189. Changing Marketplace, supra note 9.
190. 145-Online service providers are defined in the DMCA.
191. See 17 U. S. C. § 512 (k) (1) (A) - (B) (2006 and Supp. 2007). For service providers merely acting as conduits and seeking the §512 (a) safe harbor, "'service provider' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received."
192. Id. § 512 (k) (1) (A). "This broad definition includes network services companies such as Internet service providers (ISPs)." FAQ About DMCA Safe Harbor, http://www.chillingeffects.org/dmca512/faq.cgi#QID127 (last visited Oct. 4, 2009). For the other safe harbors of section 512 (b) - (d), "the term 'service provider' means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A)." 17 U. S. C. § 512 (k) (1) (B).
193. See discussion supra notes 127-30.
194. 17 U. S. C. § 512 (i). The ISP must also accommodate and not interfere with "standard technical measures."
195. Id. §512 (i) (1) (B). Copyright owners use standard technological measures to protect copyrighted works.
196. Id. § 512 (1) (2). The § 512 (b), (c), and (d) safe harbors also require as a condition that the ISP respond to DMCA takedown notices.
197. See id. § 512 (c) (3), (b) (2) (E), (c) (1) (C), (d) (3).
198. 3 MELVILLE NIMMER and DAVID NIMMER, NIMMER ON COPYRIGHT § 12B.10 (A) (Matthew Bender rev. ed. 2009);
199. Jonathan Zittrain, A History of Online Gatekeeping, 19 HARV. J. L. and TECH. 253, 269 (2006) ("This requirement suggested a role of bouncer not simply vis-à-vis a particular set of information in controversy. Rather, it anticipated identifying bad people rather than just bad acts, and it encouraged ISPs and OSPs to act against those people, truly serving as bouncers the way bouncers at night clubs and bars do, ejecting recidivist troublemakers.").
200. 3 NIMMER and NIMMER, supra note 148, § I26.io (A) (2);
201. see Zittrain, supra note 148, at 269.
202. H. R. REP. No. 105-551, pt. 2, at 61 (1998).
203. 3 NIMMER and NIMMER, supra note 148, § 12B.10 (A) (2).
204. Andres Sawicki, Comment, Repeat Infringement in the Digital Millennium Copyright Act, 73 U. CHI. L. REV. 1455, 1455 (2006).
205. Lemley and Reese, supra note 134, at 1420.
206. 3 NIMMER and NIMMER, supra note 148, § I2B.io (B) (3).
207. Id. § 12B.10 (B) (3) (b). As Professor Nimmer notes, We have already seen that A and B must be treated as infringers even if someone neglected to file a notification of claimed infringement about their conduct. The converse question remains whether C and D need to be treated as infringers by dint of multiple notifications of claimed infringement about their conduct. The answer is negative. Users A-D must be judged on their own merits. It neither suffices to treat any as an "infringer" for repeat infringer purposes that a copyright owner has filed a notification of claimed infringement against her, nor does it derogate from her status as a known infringer that a copyright owner has failed to file a notification of claimed infringement against her. In short, those notifications, albeit crucial to the statutory scheme for determining past infringement, do not meaningfully contribute to Section 512's disposition of future infringement in the policy that it mandates.
208. Id. (footnotes omitted).
209. Lemley and Reese, supra note 134, at 1421 n. 293 (discussing similar examples).
210. 157-H. R. REP. No. 105-551, Part 2, at 61 (1998).
211. See supra Part II. B.
212. See supra Part II. C.
213. 3 NIMMER and NIMMER, supra note 148, § 12B.10.
214. Id. § 12B.10 (B) (3) (b).
215. Id.
216. ISPs are unsure of how to implement the repeat infringer policy.
217. See Greg Sandoval, Is AT&T Violating the DMCA by Not Booting 'Repeat Infringers?', CNET News, Apr. 1, 2009, http-JI news.cnet.com/8301-1023-3-10208747-93.html. While AT&T sends notices of alleged infringement to its customers, AT&T, consistent with the arguments in this Note, has said that it is not AT&T's role to determine whose connection may be terminated as a repeat infringer.
218. Id. However, others, such as Cox and Comcast, are cooperating in the RIAA's antipiracy campaign. Sandoval, supra note 72.
219. There are other proposed solutions that keep the burden of determining whether something infringes off of the ISP and still provide some protection to the subscriber.
220. See Lemley and Reese, supra note 134, at 1421 ("Keying the termination obligation to an administrative finding would protect the due process rights of those wrongfully accused of infringement without rendering the repeat infringer provision virtually ineffective."). Professors Lemley and Reese argue for a middle ground between Professor Nimmer's current interpretation and the RIAA's interpretation, positing that an administrative body should independently determine whether the content infringes.
221. Id. They posit that an administrative body should independently determine whether the content infringes.
222. Id. The administrative solution advocated by Professors Lemley and Reese is outside the scope of this Note. However, New Zealand and France both have, to some extent, attempted to use the administrative body approach.
223. See infra Part IV.
224. Lemley and Reese, supra note 134, at 1421.
225. See H. R. REPV. No. 105-551, Part 2, at 61 (1998).
226. See supra Part II. C
227. See supra Part II.
228. See Internet Policy Statement, supra note 35.
229. Comcast Order, supra note 12, ¶ 50.
230. See supra Part II. C.
231. See infra notes 177-85 and accompanying text.
232. See 3 NIMMER and NIMMER, supra note 148, § I2B.io (B) (3);
233. see also Sandoval, supra note 163.
234. 174-See supra Part II. B-C.
235. See supra Part III. A.
236. See supra Part. IIIA.
237. See supra notes 127-30 and accompanying text for a discussion of these requirements.
238. See ZTTTRAIN, FUTURE, supra note 23, at 119 (noting that "the scheme reflects a balance" and that online service providers could have "stopped offering... services for fear of crushing liability under a different legal configuration");
239. Jennifer Bretan, Harboring Doubts About the Efficacy of §512 Immunity Under the DMCA, 18 BERKELEY TECH. L. J. 43, 43 (2003) ("Without some measure of protection against potentially crushing liability, ISPs could no longer afford to provide the technological backbone that now supports the Internet. Rather than continue its progression, absent structured immunity, the growth of the Internet might falter as bankrupted ISPs slowly disappear from the digital landscape." (footnote omitted)).
240. See generally Assaf Hamdani, Who's Liable for Cybenvrongs?, 87 CORNELL L. REV. 901, 917 (2002).
241. See ZITTRAIN, FUTURE, supra note 23, at 119;
242. Hamdani, supra note 179, at 918.
243. This is an example of overdeterrence. See Hamdani, supra note 179, at 921. This "unprompted enforcement" could lead to beneficial uses being stifled by ISPs. ZITIRAIN, FUTURE, supra note 23, at 120.
244. 47 U. S. C. § 230 (2006). Similar overdeterrence would occur in the defamation context if ISPs did not have a safe harbor.
245. See Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997);
246. Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D. D. C. 1998). Note that ISPs are referred to as "interactive computer services" in the Communications Decency Act.
247. See 47 U. S. C § 230.
248. See Hamdani, supra note 179, at 916.
249. ZITTSAIN, FUTURE, supra note 23, at 119-20. Interestingly, under the Communications Decency Act, an ISP would not be liable even if it had knowledge of the defamatory statement.
250. See Zeran, 129 F.3d at 332-34.
251. ZITTRAIN, FUTUREV, supra note 23, at 119.
252. See 17 U. S. C.§512.
253. See 3 NIMMER and NIMMER, supra note 148, § 12B.10 (B) (3) (b).
254. See 17 U. S. C. § 512 (b) (2) (E).
255. See 17 U. S. C. § 512 (a).
256. RIMMER, supra note 125, at 194;
257. SEE Verizon Internet Servs. v. RIAA, 351 F.3d 1229, 1235 (D. C. Cir. 2003);
258. see also 17 U. S. C. § 512 (a) (lacking a notice and takedown provision).
259. Verizon Internet Servs., 351 F.3d at 1235;
260. see Rimmer, supra note 125, at 194.
261. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998);
262. see also LITMAN, supra note 3.
263. 3 NIMMER and NIMMER, supra note 148, 1 12B.10 (B) (3).
264. 194-See supra Part II. A.2.
265. 195-VAIDHYANATHAN, supra note 5, at 151-52.
266. LITMAN, supra note 3, at 179;
267. see LESSIG, supra note 107, at 201-02 (noting that overregulation turns people into criminals or law breakers, and that "[t]wenty million Americans have come of age since the Internet introduced this different idea of 'sharing.' We need to be able to call these twenty million Americans 'citizens, 'not 'felons.'"). One commentator estimated that there are twenty-billion illegal music downloads per year.
268. See Schleimer, supra note 12, at 140.
269. LESSIG, supra note 107, at 201-02;
270. LESSIG, supra note 1 (describing the No Electronic Theft Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 (codified as amended in scattered sections of 17, 18, and 28 U. S. C.), which criminalizes file sharing in some circumstances); Cheng, supra note 107, at 697.
271. See Yoo, supra note 11, at 1862-63;
272. McDowell, supra note 11 (discussing congestion problems and network level solutions).
273. See supra notes 57-58 and accompanying text.
274. See Triplett, supra note 66.
275. Id.;
276. Schleimer, supra note 12, at 144 ("ISPs,... for competitive reasons, must begin licensing and distributing entertainment content, or risk being trampled by the competition. ");
277. Changing Marketplace, supra note 9.
278. AFP, supra note 18;
279. AFP, Top Legal Body Strikes Down Anti-Piracy Law, FRANCE 24, June 10, 2009, http://www.france24.com/en/20090610-top-legal-body-strikes- down-anti-piracy-law-hadopiconstitutional-council-internet-france [hereinafter AFP, Top Legal Body];
280. Marguerite Reardon, France Passes Controversial Antipiracy Bill, ZDNET UK, May 13, 2009, http://news.zdnet.co.uk/intemet/o, 1000000097, 39651441, 00.htm;
281. see Crumley, supra note 18;
282. Gunn, supra note 18;
283. Posting of Bruce Gain, supra note 18.
284. Posting of Bruce Gain, supra note 18.
285. AFP, Top Legal Body, supra note 202;
286. David Meyer, EC: New Net-Neutrality Law is Unnecessary, ZDNET UK, June 12, 2009, http://news.zdnet.co.uk/commumcations/o, 10000000085, 39663086, 00.htm.
287. See Eric Pfanner, France Approves Wide Crackdown on Net Piracy, N. Y. Times, Oct. 22, 2009, available at http://www.nytimes. com/2009/10/23/technology/23net.ht1nl. The law requires that a judge consider the allegations before allowing suspension of the account. Id.
288. Copyright (New Technologies) Amendment Act 2008, 2008 Pub. Act. No. 27 (N. Z.), available at http://www.legblation. goW.nz/act/public/2008/0027/ latest/DLM1122643.html. Note that while the language of section 92A of the New Zealand Copyright Act is similar to the language of the DMCA's repeat infringe: policy, discussed supra Part III, ISPs in New Zealand are already implementing section 92A to terminate the accounts of alleged infringers upon receiving notices of alleged infringement.
289. See Drinnan, supra note 18.
290. Drinnan, supra note 18.
291. New Zealand Govt Reveals New "Three-Strikes" Plan, July 14, 2009, http://www.zeropaid.com/news/86639/new-zealand-govt-reveals-new-three- strikes-plan/.
292. Id.
293. Georgie Rogers, Piracy Crackdown Works, BBC, Oct. 13, 2008, http://www.bbc.co.uk/6music/news/20081013-downloaders.shtml.
294. Rogers, supra note 18;
295. Ward, supra note 18.
296. David Meyer, Virgin-Universal Deal May Hit 'Persistent' File Sharers, CNET News, June 15, 2009, http://news.cnet.com/8301-1023-3- 10264472-93.html?tag=mncol (discussing new deal that would lead to temporary suspensions of Internet access based on "information coming from the record company");
297. Rogers, supra note 210.
298. Hearne, supra note 18.
299. Id.
300. 215-See New Zealand Govt Reveals New "Three-Strikes" Plan, supra note 208.
301. This new legal development in New Zealand bears at least a superficial similarity to that proposed by Professors Lemley and Reese, in which an administrative agency would determine who was a repeat infringer under the DMCA.
302. See Lemley and Reese, supra note 134, at 1421.
303. Id.
304. Of course, "reasonable grounds" is probably an improvement over a "good faith belief, " the current standard for a takedown notice, discussed supra Part II. A.2.
305. See supra Part III.
306. Comcast.net Subscriber Agreement (2009), http://www.comcast.net/tenns/ subscriber/. The agreement may be terminated for, among other reasons, violation of the Acceptable Use Policy.
307. Id.;
308. see Comcast Acceptable Use Policy, supra note 81. The Acceptable Use Policy allows Comcast to terminate users who use too much bandwidth and allows Comcast to block transmissions that violate other portions of the Acceptable Use Policy-such as the DMCA provisions.
309. Id. While the Acceptable Use Policy mentions Comcast's compliance with the DMCA and Comcast's obligations to remove allegedly infringing material, Comcast does not claim the right to terminate alleged infringers, although under section I of the Policy, copyright infringement would be a violation of the Policy.
310. Id.
311. 3 NIMMER and NIMMER, supra note 148, § 10 (B) (3) (b).
312. Id.
313. See McDowell, supra note 11.
314. As previously discussed, even the FCC acknowledged that ISPs may incorporate reasonable network management programs that do not discriminate against content or applications.
315. See supra Part III. B. Thus, any potential congestion-related concerns are still valid. However, because of the importance of allowing users access to the lawful content of their choice
316. see supra Part I. B., congestion-related concerns should not be used as a pretext for discrimination against peer-to-peer users without proof of actual infringement.
317. See supra note 220.
318. Lemley and Reese, supra note 134, at 1420 n. 292 (discussing the copyright owner's broad reading of "repeat infringer").
319. See 17 U. S. C. § 512 (2006).
320. See supra Part III. B.
321. See Comcast Corp. v. FCC, No. 08-1291, 2009 U. S. App. LEXIS 7028 (D. C. Cir. Apr. 1, 2009) (dismissing related actions seeking Comcast's immediate end to network management practices as moot);
322. Steven Musil, Comcast Appeals FCC Traffic-Blocking Ruling, CNET News, Sept. 4, 2008, http://news.cnet.com/8301-13578-3-10033376-38.html (discussing Comcast's appeal);
323. Todd Shields, Comcast Seeks Reversal of FCC on Internet Management, BLOOMBERG, http://www.bloomberg.com/apps/news?pid= 20601103&sid=a6fdbkXHcRxM, Sept. 4, 2008. For a discussion of the argument that policy statements do not have the force of law
324. see Telecommunications Research and Action Center v. FCC, 800 F.2d 1181, 1186 (D. C. Cir. 1986). This case notes that a policy statement is "neither a rule nor a precedent-[L]ike a press release, [it] presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications."
325. Id. (quoting Pacific Gas and Elec. Co. v. FPC, 506 F.2d 33, 38 (D. C. Cir. 1974)). However, policy statements also leave room for an agency to exercise discretion.
326. See Am. Bus Ass'n v. ICC, 627 F.2d 525, 529 (D. C. Cir. 1980) (policy statement "acts [only] prospectively" and "genuinely leaves the agency and its decision-makers free to exercise discretion").
327. Comcast Order, supra note 12, ¶14.
328. Id. ¶para;12-27.
329. Id. ¶13.
330. Wireline Broadband Order, supra note 36.
331. Comcast Order, supra note 12, 1 23 n. 109 (alterations in original) (quoting Defendants' Reply Brief in Support of Motion for Judgment on the Pleadings at 3, Hart v. Comcast of Alameda, No. C-07-06350-PJH (N. D. Cal. May 28, 2008)). Additionally, the FCC's interpretations of the Communications Act may be entitled to some deference in court because whether or not they enjoy any express delegation of authority on a particular question, agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered. "[T]he well-reasoned views of the agencies implementing a statute 'constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" United States v. Mead Corp., 533 U. S. 218, 227 (2001) (alteration in original) (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998)).
332. See Press Release, FCC, supra note 21.
333. The RIAA's general counsel himself derided "dumb pipes" (network neutrality) and said that more efficient traffic monitoring was necessary.
334. See Triplett, supra note 66.