Volume of Music Piracy Complaints Against ISPs Growing

As ISPs face a growing number of lawsuits by music labels accusing them of complacency in battling piracy by their subscribers, intellectual property and copyright experts say it's not clear whether broadband internet access service providers have modified their procedures in response or whether such contributory and vicarious copyright infringement suits will continue to be filed and potentially won for years to come.

The 2014 lawsuit, BMG v. Cox, and its finding in BMG's favor (see 1802010026) paved the way for subsequent suits, emailed David Lowery, University of Georgia music business senior lecturer and lead singer of rock bands Cracker and Camper Van Beethoven. “Without that foundation, you didn't have the road map,” he said. There's less downside for music labels to go after ISPs than individuals, he said: “People hate cable companies.”

Under the Digital Millennium Copyright Act (DMCA), a safe harbor provision says an ISP that effectively implements a repeat infringer policy is legally immune. But implementation is far more difficult than just having a policy, said IP lawyer Alex Lawrence of Morrison and Foerster. The law is unclear on what an effective one is, so it's open to interpretation how frequently an infringer can infringe on your network without your taking action, he said.

Lawrence said there's legal ambiguity on the safe harbor, but a lot of that has been clarified and many of the complaints against ISPs might be legacy issues instead of current policies and practices. He said significant new cases would seem unlikely because ISPs presumably would be motivated to act by the threat of verdicts like the $1 billion one against Cox in litigation brought by various music labels. Cox's appeal of that verdict is pending in the 4th U.S. Circuit Court of Appeals.

Large ISPs have in-house legal expertise on complying with DMCA and likely will be immune as long as they're following their repeat infringer policies, said IP lawyer Gene Markin of Stark and Stark.

Since the 2014 BMG litigation, Windstream settled with BMG after seeking a ruling in 2016 that it's not liable for direct or indirect copyright infringement. A 2019 lawsuit brought by music labels against RCN is pending before the U.S. District Court in Trenton, New Jersey. The court dismissed an RCN counterclaim in June, with RCN filing an amended counterclaim (in Pacer, docket 19-cv-17272) last month. U.S. District Judge Mary Scriven of Tampa scheduled (in Pacer, docket 19-cv-00710) an August 2022 trial earlier this month for a 2019 suit brought by music labels against Bright House Networks, now a part of Charter. Music labels sued Frontier in federal court in Manhattan in June and Charter Communications in Denver in July. A 2019 complaint against Charter brought by many of the same plaintiffs is pending in the Denver court. The Recording Industry Association of America, Frontier and Charter didn't comment.

The other suits all follow the same playbook as the BMG suit, Lawrence said. "In reality, Frontier operated its network as an attractive tool and safe haven for infringement," said plaintiffs UMG Recordings and the others in the June Frontier complaint (in Pacer, docket 21-cv-05050). "Rather than working with Plaintiffs to curb this massive infringement, Charter did nothing, choosing to prioritize its own profits over its legal obligations," UMG et al. said in the July suit against Charter (in Pacer, docket 21-cv-02020).

It's unclear whether ISPs are all acting in ways that would give them safe harbor protection, said Mike Smith, Carnegie Mellon University professor of information technology and marketing. He said the legal standards have been shifting over time: The DMCA and Communications Decency Act Section 230 put all the responsibility on rights holders and platforms having a minimum level of responsibility to be compliant. He said a belief is rising that Section 230 results in no incentive for edge providers to police their sites since there's no responsibility for what's posted, and increasingly there's seen a need to incentivize platforms to take more reasonable steps to self-police. Smith said courts could start moving toward wanting to see ISPs take reasonable affirmative steps to protect against known misuses of their platforms, and that reasonableness being updated over time.

Major labels thought compliance would have improved after the Cox verdict, said John Simson, a former music industry executive and entertainment lawyer, now director of the business and entertainment program at American University's Kogod School of Business. The DMCA safe harbor provision has enabled ISPs "to thumb their noses at content owners for the most part." He said piracy seems to be declining in the face of streaming services like Spotify making legal access to content easier.

Echoed Cracker's Lowery, "I suspect ISPs are up to [their] same old shit. Not really suspending repeat offenders like they are supposed to, to enjoy their safe harbor."