A federal court in Virginia ruled that an ISP could be held liable for one of its users sharing pirated content, a decision now being supported by the RIAA and MPAA.
As Torrent Freak reports, the case filed against Cox Communications, filed by BMG Rights Management, claimed the ISP held some responsibility for the actions of its customers and could be fined for copyright infringement.
Of course, Cox disagreed with the ruling and filed a 93-page appeal in November, asking for a new trial and claiming the case has brought uncertainty to the entire industry.
“This case involves an unprecedented attempt to impose liability on an Internet service provider (ISP) for its’ subscribers alleged copyright infringement,” the filing says, as reported by Torrent Freak. “Yet the court sanctioned a novel expansion of contributory liability to ISPs, based not on evidence that the ISP actually knew of specific infringing acts or took affirmative steps to foster infringement, but on the ISP’s constructive knowledge of the existence of infringing activity on its network.”
To be clear, when the court ruled in BMG’s favour, the fine levied was nothing to sing away: Cox Communication was ordered to pay BMG $25 million.
Cox is claiming the jurors arrived at their verdict as the result of several missteps in the federal court, including a misreading of the Supreme Court’s authority, “which prevents contributory copyright liability if a technology has substantial non-infringing uses.” BMG failed to prove sufficiently that Cox knew of the copyright infringement occurring by its users or that the ISP was actively working to promote such actions, among other alleged mistakes.
Music rights groups, including the RIAA, MPAA and the Copyright Alliance, are joining forces with BMG.
In its brief, MPAA says that online piracy is a major problem that cannot be addressed or monitored by copyright holders alone. ISPs need to step up and play their part to ensure only legally obtained content is enjoyed by users.
“Online piracy accounts for a full quarter of all internet traffic and costs the entertainment industry tens of billions of dollars per year,” MPAA writes in its brief.
In its filing, the RIAA argues that takedown notices, as established by the Digital Millennium Copyright Act (DMCA), should be considered actionable filings and ways to identify users as copyright infringers, which should trigger a response from ISPs.
“If Congress meant that a subscriber should have been sued in court, had a judgment entered against her, and failed to overturn that judgment on appeal—multiple times—before facing even the threat of losing internet access as a repeat infringer, it would have said so,” RIAA says in its brief. If that were true, “copyright holders would have to launch massive legal campaigns in the US targeting individual file-sharers,” Torrent Freak explains.
By the way, this isn’t the only case involving ISPs being sued for copyright infringement because of the actions of its subscribers. In June, another company, Windstream, another ISP, went to court to protect itself from BMG. BMG claimed Windstream is complicit in copyright infringement because its customers have been downloading pirated content including songs owned by BMG and said it had five years’ worth of notices with settlement demands.
In exchange, Windstream argued that it “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.” Windstream also claims to have no ability to determine or monitor files stored on individual users’ computers or identify files obtained through pirated or shared-source sites like BitTorrent.