Should ISPs Be Liable for Users Who Share Pirated Content?

Should ISPs Be Liable For Users Who Share Pirated Content?
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It’s the ‘dumb pipe’ defense, all over again…

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.

Federal Jury Finds Cox Communications Guilty of Willful Copyright Infringement

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.

7 Responses

  1. Anonymous

    If we want TorrrentFreak crap, we know where to find it. No need to reprint it here.

  2. danwriter

    It’s a “dumb” pipe, not a “dump” pipe.

    • Paul Resnikoff

      Ha, thanks. They say there’s no such thing as a mistake.

  3. Lest it be overlooked...

    The issue of whether or not an ISP is entitled to a safe harbour just got a little more complex. In order to qualify for the section 512(c) safe harbour, both websites as well as online services are required to designate agents to receive section 512(c)(3) copyright takedown notices. However, the copyright office has recently issued a “Notice of Proposed Rulemaking” regarding the designation of such an agent, and a footnote buried in that notice now requires that registrants renew those forms every three years albeit for a lesser fee.

    Failure to comply with this new “rule,” which requires both websites and online services to renew those forms every three-years, will expose a website and online service to dire consequences, specifically, it will strip the website as well as an online service of their safe harbour.

    With “copyright” predators (as there is no patent, and with a mind to the merger doctrine, among other things) such as BMG and their “copyright” enforcer Rightscorp waiting in the wings to pounce on unwary websites and online services (who will most likely be independents who cannot afford to retain in-house legal representation to keep on top of such things) who would otherwise enjoy a safe harbour, but for not knowing or forgetting that they must renew the agent designation and thereafter every three-years, the threat of litigation and exposure to statutory damages could be catastrophic; the damage toll could be rising at this very moment.

    Perhaps, as a courtesy to the DMN readership, and others, given the wide-spread damage that could be exacted on the unknowing or forgetful, DMN might write an article on this very topic?

    • Lest it be overlooked...

      It is also noteworthy that the Computer & Communications Industry Association comments to the “copyright” office regarding the proposed “rule” revealed that not only is a designated agent required for startups and small businesses, but also for “independent creators, such as authors who run their own blog with comments.”

      Simply stated, whether or not this proposed “rule” goes into effect, among other things, a designated agent is required to receive 512(c)(3) “copyright” takedown notices in order to qualify for the 512(c) safe harbour. It is not enough for an online service to merely comply with a “copyright” takedown notice.

      If the proposed “rule” goes into effect, online services will be required to re-register a designated agent as well as renew the designation every three-years.

      I may have repeated some of my previous comment, but given the potential liability, I decided to err on the side of caution.

    • Anonymous Too

      You wrote:
      ” (as there is no patent, and with a mind to the merger doctrine, among other things)”

      If you’re going to insist on trying to spread this academic meme by posting repetitive comments, please explain how a songwriter can acquire a patent on a musical composition under current US law.