Apologies for the déjà vu, but this is probably going to feel familiar. Windstream, a US-based internet service provider, has now been accused of copyright infringement by BMG, the international music organization focused on the management of music publishing, distribution and recording rights.
Since 2011, Windstream has been receiving notices along with settlement demands from Rightscorp, who act on behalf of BMG. But, now the ISP is fighting back. Windstream has filed a demand for a jury trial with the Southern District of New York, seeking a judgement declaring that it is not liable to defendants for ‘direct or indirect copyright infringement.’
The ISP says that the notices they receive from Rightscorp lack sufficient evidence to prove that copyright infringement has been carried out by their subscribers. But Windstream also points out that they are simply an internet connectivity provider who does not monitor or control the activity of its users.
Windstream’s filing reads…
”Windstream denies that it is liable—either directly or indirectly—for any alleged infringement of BMG’s copyrights, as Windstream has acted in accordance with the Copyright Act, including those laws, doctrines and provisions prohibiting direct, contributory or vicarious infringement. Defendants have no direct evidence that any Windstream subscriber engaged in direct copyright infringement and Windstream, as a mere conduit for the transmission of Internet services, cannot be held liable for direct copyright infringement.”
The ISP also outlines that they have tried to be transparent with Rightscorp and BMG about their position, but the notices kept flooding in.
This is a battle that has already been fought, though BMG and Rightscorp slayed the last dragon, Cox Communications. But that was predicated on some serious DMCA violations, as well as incriminating internal emails. Now, ISPs are pushing back with different defenses. That could be borne out if subpoenas are initiated.
Both Rightscorp and BMG allege that Windstream ‘allow unchecked infringement on its site’ and as a result is ‘seeking statutory damages of $150,000 per infringed work.’ But, the ISP asks the court to ”declare that Windstream has not acted willfully in violation of any provision of the Copyright Act or other laws,” and ”declare that Defendants are not entitled to any compensation or damages from Windstream for any alleged infringement of BMG’s copyrights”.
This case raises the valid question of whether ISPs are responsible for sharing pirated content or not. In the case of Cox, a Virginia federal jury ruled that an ISP can be held accountable. Windstream feels that precedent may not apply to them, or at least is willing to fight it.