Can ISPs be Sued for Copyright Infringement?

It is unreasonable to try and hold internet service providers (ISPs) responsible the content a subscriber uses or for downloads, even if that content has been pirated or otherwise illegally obtained.

That’s the case being argued in the US District Court for the Southern District of New York, where Windstream is fighting legal action against it from BMG Rights Management and Rightscorp, a separate company that executes BMG’s contracts. A copy of the filing was obtained by A Journal of Musical Things Wednesday evening.

BMG claims Windstream is complicit in copyright infringement brought about by its customers by downloading pirated content, namely music owned by BMG. For the past five years, BMG, via Rightscorp, has been sending Windstream notices with settlement demands.

Windstream isn’t having it. In a motion filed Tuesday in the Manhattan court, Windstream argues that, “As a pipeline to the internet, Windstream does not monitor or otherwise control the manner in which its subscribers utilize their Windstream internet connection and does not initiate, control, select or modify the material or content transmitted by Windstream subscribers over Windstream’s network.” Further, Windstream has no ability to determine or monitor the files stored on users’ computers or identify any files obtained through sites like BitTorrent.

In the five years since BMG and Rightscorp started sending Windstream notices alleging infringement of BMG’s copyrights, the company has received dozens of letters saying Windstream is “liable for contributory and vicarious copyright infringement,” the company says. The notices don’t follow a set structure, meaning each must be manually processed.

“The notices lack sufficient details to show the occurrence of actual copyright infringement and the specific identity of the person(s) accused of infringing BMG’s copyrights, making it impossible for Windstream to know whether any of its subscribers have actually infringed upon BMG’s copyrights using Windstream’s network,” the document continues. Windstream recently has been accused of “allowing repeat copyright infringers to use Windstream’s network to infringe upon BMG’s copyrights,” and should be responsible for “actual or statutory damages as high as $150,000 per infringed work.”

Windstream maintains it is merely a “conduit for the transmission of internet services” and therefore cannot be subject to the take-down notices allowed under the Digital Millennium Copyright Act. The company is asking the court to toss all allegations against it, find that Windstream hasn’t been negligent or complicit in any illegal activity and, therefore, BMG isn’t owed any compensation.

Last year, a federal jury in Virginia awarded $25 million in damages to BMG and Rightscorp, ruling that Cox Communications essentially turned a “blind eye to musical piracy,” ArsTechnica reported at the time. The judge in that case, US District Judge Liam O’Grady, ruled that the cable and internet provider  was not protected under the DMCA “safe harbor” provision because it did not “reasonably implement” a policy to find and cut off service to customers who repeatedly infringed on copyright protections.