Does the Recent Supreme Court Decision in Packingham Implicate ISPs’ Duty to Terminate Internet Access to Repeat Infringers Under the DMCA?

On June 19, 2017, the U.S. Supreme Court issued an opinion in Packingham v. North Carolina, striking down a North Carolina law that prohibited registered sex offenders from accessing social networking web sites that are used by minors. The Court invalidated the law because it “impermissibly restricts lawful speech in violation of the First Amendment.” Shortly after release of the opinion, various copyright experts and attorneys suggested the decision implicates the safe harbor provision in the Digital Millennium Copyright Act (“DMCA”) that requires Internet service providers (“ISPs”) to terminate Internet access service to repeat copyright infringers. A blog post by Harold Feld, copyright expert with Public Knowledge, provides a lengthy analysis that is worth reading.

Justice Kennedy, writing for the majority opinion, begins with a reminder that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Today, according to Justice Kennedy, the Internet is clearly the most important public forum for engaging in free speech. He regards social media sites as being particularly important for the exchange of information and ideas, noting that Facebook has 1.79 billion active users, or about three times the population of North America.

In its analysis, the Court first assumed that the First Amendment “permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” The North Carolina law purports to exempt sites that provide a single discreet service such as photo-sharing or messaging, and sites that primarily facilitate e-commerce. But, because of the broad wording of the law, the Court assumed it “might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.” In light of this, the Court found that the North Carolina law “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.”

The Court’s decision in Packingham immediately garnered the attention of copyright law experts. If a law prohibiting access to social networking web sites violates the First Amendment, then how can the provision in the DMCA requiring ISPs to terminate access to the entire Internet for alleged repeat copyright infringers pass constitutional muster?

The DMCA was enacted in 1998 to, among other things, combat online copyright infringement. Title II of the DMCA, the Online Copyright Infringement Liability Limitation Act, creates a safe harbor for ISPs serving as a conduit for transmitting material through its system or network. If the conditions for the safe harbor are met, an ISP will be insulated from liability for direct and secondary infringement. To be eligible for the DMCA safe harbor, an ISP must implement “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”

In a nutshell, Packingham says prohibiting access to sites like Facebook and Instagram violates the First Amendment. The law that was struck down applied to convicted sex offenders. In comparison, the DMCA requires an ISP to terminate a repeat infringer’s access to every website on the Internet, and repeat infringers, nearly all of the time, are individuals who have never been found guilty of copyright infringement by a court of law.

Whether the Court’s decision in Packingham goes any further than triggering debate about the lawfulness of the DMCA safe harbor’s repeat infringer provision remains to be seen. It’s possible that the Court’s analysis of First Amendment rights vis-a-vis the ability to access the Internet could reappear later this year. There is a case currently before the 4th Circuit Court of Appeals that involves the DMCA safe harbor – BMG Rights Management (US) LLC v. Cox Communications, Inc. In the lower court decision, Cox, in its capacity as an ISP, was declared ineligible for the DMCA safe harbor for failing to terminate service to alleged repeat copyright infringers. As a result, Cox was found secondarily liable for copyright infringement to the tune of $25 million. While the appeal has been fully briefed at this point, Cox could file supplemental information with the 4th Circuit arguing that the Supreme Court’s decision in Packingham is in some way applicable.