Terminating the Termination Policy Requirement: Protecting Internet Users and Service Providers by Expanding the DMCA Section 512(a) Safe Harbor

Authors

• Michael Kritzer, Benjamin N. Cardozo School of LawFollow

Abstract

The Digital Millennium Copyright Act of 1998 (DMCA) established “safe harbors” for Internet Service Providers (ISPs) against secondary liability for the copyright infringement perpetrated by their users. Among the requirements for eligibility for these safe harbors is a provision requiring ISPs to implement a policy for terminating repeat infringers. This Note proposes that Congress codify an exception to this termination requirement for a specific class of ISPs—“transitory” providers that solely provide internet access and do not control the information transmitted over their networks.

This Note examines the safe harbor and termination requirement through the lens of two recent secondary infringement cases against an ISP: BMG Rights Management (US) LLC v. Cox Communications, Inc., and Sony Music Entertainment v. Cox Communications, Inc. In both cases, Cox Communications, a “transitory” ISP, was deemed ineligible for safe harbor for failing to implement a reasonable termination policy and was held liable for the copyright infringement of its users. These cases highlight that ISPs lack clear standards in interpreting the bounds of the DMCA’s termination requirement.

This Note further compares the DMCA’s legislative history and stated purposes with the practical realities of internet usage and digital piracy in the years since its enactment. It concludes that enforcing the termination requirement, as currently interpreted, fails to effectuate the DMCA’s purposes, instead harming “transitory” ISPs, and ultimately, internet users. Adopting the proposed amendments to the DMCA would protect internet users without unduly disrupting the DMCA’s traditional balance of protections afforded to ISPs and copyright holders.

Disciplines

Communications Law | Intellectual Property Law | Internet Law

Recommended Citation

Michael Kritzer, Terminating the Termination Policy Requirement: Protecting Internet Users and Service Providers by Expanding the DMCA Section 512(a) Safe Harbor, 47 Cardozo L. Rev. 1095 (2026).
Available at: https://larc.cardozo.yu.edu/clr/vol47/iss3/5