The “repeat infringer” issue remains a hot topic in US courts after rightsholders filed lawsuits against several ISPs.
These Internet providers are accused of not doing enough to stop copyright infringers on their networks, even after receiving multiple ‘copyright infringement’ notifications.
The copyright infringement allegations can have real consequences. In 2019, a Virginia jury ordered Internet provider Cox to pay a billion dollars in damages to a group of major record labels. This case is being appealed but at the same time, other ISPs have been dragged to court over similar issues.
Filmmaker Sue WOW!
Most of the early ‘repeat infringer’ cases were filed by music companies backed by the industry group RIAA. However, in recent weeks some independent movie companies have filed similar lawsuits featuring even more far-reaching demands. This includes a copyright infringement lawsuit against Internet provider Wide Open West, better known as WOW!.
In a complaint filed at a federal court in Colorado, the makers of movies including “After We Collided,” “Dallas Buyers Club,” “Rambo V: Last Blood,” and “London Had Fallen” accuse WOW! of contributory and vicarious copyright infringement. The ISP allegedly turned a blind eye to pirating subscribers.
“Defendant failed to terminate the accounts and/or take any meaningful actions against its subscribers in response to the Notices consistent with a reasonably implemented policy for termination of subscribers […] who are repeat infringers,” the complaint reads.
No Meaningful Action
The movie companies, represented by attorney Kerry Culpepper, list several examples of account holders for whom WOW! was sent dozens of copyright infringement notices. Despite these alerts, the accounts remained active and continued their piracy activities.
For one IP address, the rightsholders sent over 100 infringement notices, without any meaningful response. That account was eventually terminated earlier this year after the attorney alerted WOW! through a separate letter.
The fact that WOW! advertised high-speed Internet access, combined with the inaction against online piracy, attracts potential copyright infringers to the ISP, the complaint alleges. As such, WOW! should be held liable for the pirating activities on its network.
“Defendant’s subscribers are motivated to become subscribers from the knowledge of Defendant’s practice of ignoring notices of infringements or failing to take any meaningful action,” the movie companies write.
There are a few key differences between the music companies’ repeat infringers lawsuits and the present one. Most notably, the movie companies cite specific cases where WOW! subscribers used the popular torrent site YTS to download content.
That claim is backed up by an affidavit from the operator of YTS, who signed settlements with several of the movie companies in the past. As part of this deal, the operator agreed to hand over data from the site’s user database.
With this lawsuit, the movie companies hope to recoup millions of dollars in piracy damages. However, that’s just the beginning.
Site Blocking, Three-Strikes, and Identifying Pirates
What stands out most are the far-reaching and concrete demands for injunctive relief. The complaint specifically requests an order requiring WOW! to terminate subscribers whose accounts were targeted by three unique infringement notices in three days.
In addition to this mandatory three-strikes policy, WOW! should also block all alleged pirate sites that are listed in the USTR’s annual overview of notorious markets. This includes the likes of The Pirate Bay, RARBG, and YTS.
Finally, the movie companies request an order which requires the ISP to disclose the identities of account holders whose accounts are flagged for copyright infringement. This would allow the companies to target the alleged pirates directly.
– order Defendant to adopt a policy that provides for the prompt termination of subscribers for which Defendant receives more than three unique notices of infringements of copyright protected Works within 72 hours
– order Defendant to block subscribers from accessing notorious piracy websites of foreign origin that are listed in the annual trade report of Notorious Foreign Markets published by the United States Government on all networks under its control to prevent further pirating of Plaintiffs’ Works via the BitTorrent protocol
– order the Defendant to disclose to Plaintiffs the identifications of the subscribers who used and use Defendant’s service to infringe Plaintiffs’ Works on an ongoing basis after said subscribers are provided notice as required by 47 U.S.C. § 551
Needless to say, these demands go further than those in the repeat infringer cases we’ve seen thus far. Court-ordered site blocking and Internet disconnections are a novelty in US courts, which will be fiercely contested.
At the time of writing WOW! has yet to respond to the complaint. When it does, we will report on it accordingly.
The present lawsuit is similar to the allegations that many of the same movie outfits lodged against Internet provider Frontier Communications in a bankruptcy proceeding. That case could eventually be referred to a District Court as well, but that decision has yet to be made.
A copy of the movie companies’ complaint against WOW!, filed at the US District Court for Colorado, is available here (pdf).