Weekly Column: Regulating the Internet Beat of Music

In this week’s column, California Sports Lawyer® CEO, Founder, and Managing Attorney Jeremy M. Evans writes about the music industry's efforts to hold internet service providers liable for copyright infringement and forcing the takedown of account holders.

However, practical solutions can help alleviate the security and infringement concerns because the other side to the double-edged sword of user piracy is user privacy.

You can read the full column below. (Past columns can be found, here).

The music industry may be overreaching with its recent litigation against internet service providers (ISPs), including Cox Communications. These lawsuits aim to force ISPs to cancel accounts of users accused of infringing on the copyrights of music publishers and owners. By comparison, social media platforms notably have protection from copyright, trademark, and other types of infringement and criminal acts where the user is posting pursuant to the Communications Decency Act. However, platforms can become liable if they fail to act upon a knowingly abusive account. The question becomes: should ISPs be treated like social media platforms with protection from what their users do, or should they be held accountable for what theirs users do?

Unlike in the United States, where the Communications Decency Act provides significant protections to platforms, European nations take a markedly different approach. In Europe, the Communications Decency Act does not exist as it is an American law and platforms are held liable and there is in turn more regulation, scrutiny, and less freedom of speech. Then again, the First Amendment to the United States Constitution for protection of the freedom of speech, the press, to peaceably assemble, and to practice religion is also an American law that European countries have in some form, but not all. In other ways, American law takes from European, Greek, Roman, Persian, and Babylonian laws and traditions, but platform security through the Communications Decency Act is something that is limited to the United States. These constitutional and legal considerations highlight the broader difficulty of assigning liability to intermediaries, a challenge that extends to ISPs.

It is also true that private platforms and companies like social media platforms and the ISPs are not public forums in the sense of government control. Meaning, the government cannot generally limit the freedom of speech on social media platforms or the internet because those companies are not government entities. A party claiming as such would lack standing to do so—the government needs to be a party preventing the speech in a public space. Of course, in early 2025 there were very important Congressional hearings determining that platform providers had worked in tandem with the government in the Executive Branch and the Justice Department to limit information on social media and news platforms and networks, which would almost certainly be a violation of the First Amendment.

In a similar fashion, ISPs offer a pathway to experience the internet. The equivalent of holding ISPs liable for their users activity outright without review or the opportunity to cure the defect is the same logic that a victim being harmed by a person wielding a knife or gun should sue the manufacturer for getting wounded or worse. If anything, ISPs are even further removed from user activity because it gives access to anything (like a road), not a specific platform to post music, videos, images, and content. Another example would be blaming and holding accountable the electricity company for providing the access to the internet or blaming the gas company for cooking bad food.

ISPs have a heavy burden to carry when thinking of monitoring users. There is currently the Digital Millenium Copyright Act (DMCA) for Google and other search engines that use ISP access to take down infringing content. Unless the ISP has a defect in its service, it seems like a far stretch to include the ISPs as a potential infringer based on their inactive involvement in providing a service that has become a utility.

There is further a legislative push internationally for the regulation of American ingenuity and business. In Europe, Meta is being asked to provide a lower-priced option between ad free and no ads to consumers, which sounds more like a boardroom strategy decision than a government regulation. Meanwhile, Canada recently dropped its push for a digital service tax upon American tech and streaming companies.

Holding ISPs for their account holders activities seems a far stretch and antiquated for the music industry. Legislators and courts should be encouraging innovation and sharing of information on the internet, not stifling it. However, practical solutions can help alleviate the security and infringement concerns because the other side to the double-edged sword of user piracy is user privacy. One idea would be utilizing DMCA to issue takedowns, but the ISPs are notified of the request. Blockchain technology for music use could also be implemented so music is protected before distribution and violators can be prosecuted or even prevented from sharing. A practical prevention or response might be better than taxing or regulating further the industries.

About Jeremy M. Evans:

Jeremy M. Evans is the Chief Entrepreneur Officer, Founder & Managing Attorney at California Sports Lawyer®, representing entertainment, media, and sports clients in contractual, intellectual property, and dealmaking matters. Evans is an award-winning attorney and industry leader based in Los Angeles and Newport Beach, California. He can be reached at Jeremy@CSLlegal.com. www.CSLlegal.com.