Business News Legal

Court sides with BMG over Windstream in safe harbour case

By | Published on Friday 21 April 2017


BMG has scored another win in one of its various battles with American internet service providers that are testing the reach and specifics of US safe harbour rules.

As previously reported, last year – after BMG successfully sued ISP Cox Communications for copyright infringement after it failed to stop repeat infringers on its networks – two other net firms went to court seeking a declaratory judgement that they were definitely protected by the copyright safe harbour. That, of course, says that internet companies cannot be held liable for the infringement of their customers providing they have a system in place via which rights owners can stop their content being shared without permission.

It was RCN and Windstream who wanted judicial confirmation that – whatever had happened in Cox – they were just fine.

But BMG argued that this wasn’t a matter for a declaratory judgment. The Cox case wasn’t about whether or not the safe harbour existed, but whether or not the ISP fulfilled its obligations in order to get the protection. By failing to deal with repeat infringers, despite claiming it did, the court ruled that Cox did not have protection.

BMG hadn’t actually made any formal allegations against RCN and Windstream and – the music firm argued – a judge couldn’t rule on either net firm’s compliance with their safe harbour obligations without specific examples of copyright infringement being both made and considered – ie this wasn’t a matter for a declaratory judgment.

RCN subsequently reached a settlement with BMG and withdrew its request for a judgement, but Windstream proceeded, and this week the judge hearing the case basically concurred with BMG – ie this isn’t a matter for a declaratory judgment.

Knocking back Windstream’s request, the court wrote: “Windstream seeks a blanket approval of its business model, without reference to any specific copyright held by BMG or any specific act of direct infringement by any Windstream subscriber. Windstream seeks the kind of hypothetical and advisory opinion, isolated from concrete facts, that cannot confer jurisdiction upon this court”.

It added: “Because Windstream seeks declarations untethered from any actual instances of copyright infringement or any mention of a specific copyrighted work, the complaint fails to identify an actual case or controversy and the declaratory judgment claims must be dismissed”.

Which is the long way of saying, this isn’t a matter for a declaratory judgment.