ISPs Don’t Have Blanket Immunity From Piracy, BMG Says

Music rights group BMG has asked a New York federal court to dismiss a lawsuit filed by Internet provider RCN. The ISP requested a declaratory judgment on their potential liability for pirating subscribers. However, according to the music group, ISPs don't have "blanket immunity" against secondary infringement claims.

Can an Internet provider be held liable for subscribers who share pirated files? Yes, a Virginia federal jury ruled late last year.

This verdict caused great uncertainty in the ISP industry, as several companies suddenly realized that they could become the next target.

Internet provider RCN is among the companies that are worried about the fallout. With 400,000 subscribers nationwide, it is one of the larger Internet providers in the United States, and as such it regularly receives takedown notices for alleged copyright infringements on its network.

Many of these notices come from BMG and its anti-piracy partner Rightscorp, who argued that RCN can be held for the actions of its customers.

The Internet provider is not happy with these allegations and last year it took legal steps in response. The ISP filed a lawsuit against music rights group BMG at a New York federal court, seeking a declaratory judgment on the matter.

In their request, RCN argued that they are not liable for the alleged copyright infringements of subscribers. They are merely passing on traffic, which grants the company protection under the DMCA’s safe harbor provision, they claimed.

BMG clearly disagrees with this point of view and this week submitted a motion to dismiss (pdf) the request for a declaratory judgment at the New York federal court.

The music group stresses that a declaratory judgment is not proper in this situation. RCN wants the court to rule that it is not liable for any past, current, or future infringements, without providing essential details on their takedown and repeat infringer policies and procedures.

While BMG admits that the DMCA provides a “safe harbor” for Internet providers, they stress that this right is not unconditional. It doesn’t provide “blanket immunity” from copyright infringement claims.

“..this [safe harbor] defense is not absolute. Rather than provide conduit ISPs with blanket immunity, Congress required that conduit ISPs adopt and reasonably implement a policy for the termination of repeat infringers in appropriate circumstances before they may claim a safe harbor defense,” BMG notes.

One of the main problems BMG signals is that the court can’t rule on something that has yet to happen. Without knowing how RCN will deal with repeat infringers in the future, liability may change over time, they say.

“Crucially, the facts on which RCN’s future liability turns cannot possibly be known in advance,” BMG writes.

“The Court cannot possibly know the content of future infringement notices, whether RCN will have knowledge of future infringements, what its future practices will be, and whether it will terminate repeat infringers in appropriate circumstances.”

As such, the music rights group asks the court to dismiss the ISP’s request for a declaratory judgment.

“These sorts of contingencies render questions of infringement far too remote to justify declaratory relief. It would be extraordinarily unfair to immunize RCN against the infringement of BMG’s copyrights without regard for the facts that would be pertinent to an infringement action,” they say.

Even if the court disagrees and decides that it has jurisdiction to rule on the issue, BMG cites several other grounds to dismiss the complaint. This includes RCN’s alleged failure to state a claim for DMCA safe harbor protection.

The court will now review the arguments from both sides to decide whether the case will go ahead.

In addition to RCN’s request for a declaratory judgment regarding liability for pirating subscribers, fellow ISP Windstream has a similar case pending in the court. At the same time, Cox Communication is appealing the $25 million judgment in their case.

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