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Labels want ISPs to be “de facto copyright enforcement agents”, says ISP

By Chris Cooke | Published on Wednesday 22 August 2018

As we prepare for take two of the high profile BMG v Cox Communications safe harbour case in America, another US net firm has accused the record industry of trying to make internet service providers their “de facto copyright enforcement agents”. That claim has been made by Grande Communications which is seeking summary judgement in its favour in a copyright infringement dispute with the major labels.

The music industry has long wished that internet service providers would do more to monitor and limit piracy on their networks. ISPs are generally protected by the pesky copyright safe harbour, which means they can’t be sued when their customers use their networks to distribute content without licence. Providing, that is, they provide some tools via which copyright owners can have infringing content removed.

There have been various efforts to get the ISPs to introduce anti-piracy measures, sometimes by getting new anti-piracy laws passed, other times by seeking voluntary agreements with the net firms. The latter existed in the US for a time involving the more copyright friendly ISPs, which are usually those that also operate cable TV networks and therefore have a vested interest in movies and sporting events not being pirated.

Neither Cox nor Grande were part of that programme. BMG sued Cox arguing that it operated a deliberately shoddy policy for dealing with repeat copyright infringers among its customer base. Therefore, BMG said, Cox did not fulfil the requirements under the US Digital Millennium Copyright Act to qualify for safe harbour protection.

BMG won that case at first instance, though it was subsequently overturned on appeal because of a technicality. Hence a second court hearing is now pending in that case. Meanwhile, the wider US record industry sued Grande (and later Cox), basically presenting the same arguments as in the BMG litigation.

Earlier this month the record companies asked the court hearing its case against Grande to confirm through summary judgement that the ISP could not rely on safe harbour protection due to its rubbish systems for dealing with copyright complaints and repeat infringers.

In its filing, the Recording Industry Association Of America wrote: “Grande’s chief defence to plaintiffs’ case – [ie DMCA safe harbour] – fails as a matter of law. The undisputed record evidence is devastating to Grande and confirms that Grande cannot meet its burden of establishing its entitlement to the safe harbour”.

Now Grande has filed its own legal papers seeking summary judgement in its favour and it wants the whole case thrown out. It’s not the first time the ISP has tried to have the case dismissed, so many of the arguments in its latest submission are pretty familiar. They also echo many of the arguments previously presented by Cox in the BMG case.

A big part of Grande’s filing takes issue with Rightscorp, the anti-piracy agency that is employed by many music rights owners in the US. It says that if anyone has a shoddy or rubbish system for monitoring copyright infringement it’s Rightscorp, which means that ISPs cannot rely on the copyright complaints it submits.

As a result, it says, the labels haven’t presented any evidence that its customers are actually liable for direct infringement. There would have to be some direct infringement in order to hold the ISP liable for so called secondary or contributory infringement. Though, on the off chance the labels do demonstrate that some direct infringing was occurring, the ISP then runs through various arguments as to why there still isn’t a case for contributory infringement.

Grande declares: “This case is an attempt by the US recording industry to make internet service providers, or ISPs, its de facto copyright enforcement agents. Having given up on actually pursuing direct infringers due to bad publicity, and having decided not to target the software and websites that make online file-sharing possible, the recording industry has shifted its focus to fashioning new forms of copyright liability that would require ISPs to act as the copyright police”.

“Plaintiffs’ legal theories represent an absurd expansion of copyright liability”, it adds. “In essence, plaintiffs want to require ISPs to terminate the accounts of subscribers based on nothing more than unsubstantiated and unverifiable allegations of copyright infringement”.

Referring to the aforementioned Rightscorp, it goes on: “To further this effort, the recording industry enlists a third party to bombard ISPs like Grande with hundreds of thousands of such allegations per year – more than any ISP could ever reasonably investigate and attempt to verify, even if it had the practical ability to do so”.

Laying into the anti-piracy firm further, it says: “These notices are sent by a company that shockingly does nothing to verify the registration or ownership of any of the songs for which it sends out millions of notices of infringement and collects monetary settlements. This puts ISPs in an impossible position: either terminate subscribers based on unverified allegations of infringement, or face litigation for the secondary infringement of thousands of copyrighted works. Fortunately, the copyright law simply does not and cannot allow for secondary liability in these circumstances”.

Sticking it to the labels themselves a little more, the legal filing then says: “Plaintiffs’ case against Grande is also riddled with fatal evidentiary flaws – there are almost too many to list”. It then lists them. Before shouting: “These failures entitle Grande to summary judgment”.

It remains to be seen how the judge responds to both sides’ bid for summary judgements in their favour. The music industry feels that American case law is slowly starting to increase the obligations of safe harbour dwelling net firms, which is a welcome development given the review of safe harbour in Washington has been dragging. The labels will be hoping for success in the Cox and Grande cases to maintain that momentum.