The “repeat infringer” issue is a hot topic in US Courts that has resulted in several lawsuits already.
Under the DMCA, companies are required to implement a reasonable policy to deal with frequent offenders. Those who don’t, risk being held liable.
Thus far we have seen lawsuits targeting ISPs including Cox Communications, Charter, and Grande Communications. These companies were all sued by music industry companies and most cases remain ongoing.
In Hawaii, a new ISP was targeted a few days ago, this time by a movie outfit. In a complaint filed at a Hawaiian federal court, Bodyguard Productions accuses Internet provider Pacific DirectConnect of failing to terminate a repeat infringer.
The movie outfit, which is the copyright holder of “The Hitman’s Bodyguard,” is a familiar player in US courts. The company has previously sued many individual BitTorrent pirates. With the latest lawsuit, it breaks from this trend by going after the Internet provider itself.
Pacific DirectConnect is not a typical consumer ISP. It mainly targets hotels and resorts in Hawaii, offering integrated network solutions including Internet access. According to the complaint, one of these clients is Aston Waikiki Sunset, a large hotel in Honolulu.
According to the movie company, one of the hotel’s IP-addresses was repeatedly caught pirating. The ISP was made aware of this, both directly and through notices that were sent to its own bandwidth supplier, but apparently failed to take any meaningful action in response.
“Despite multiple notifications of infringements from Plaintiff, Hawaiian Telcom and third parties, Defendant has failed and steadfastly refused to terminate the account of subscriber Aston,” the complaint reads.
“Said infringements would have been stopped if Defendant merely terminated subscriber Aston’s service,” the movie company adds.
Bodyguard Productions argues that the ISP purposely failed to terminate the account of the Hawaiian hotel, despite knowing that it was a repeat
infringer. As such, the company is liable for the copyright infringements of its ‘subscriber.’
Through the lawsuit, the movie company requests an injunction requiring the ISP to terminate the account of the hotel. It accuses the company of both contributory and direct copyright infringement, asking the court to grant “any and all other relief” that’s appropriate in this case.
According to the complaint, Pacific DirectConnect is not protected by the DMCA’s safe harbor because it willingly failed to terminate the alleged repeat infringer. In addition, the ISP doesn’t have a registered DMCA agent, which is a requirement to enjoy safe harbor protection.
As far as we know, this is the first time that an ISP has been sued for providing Internet services to a hotel. This sets the case apart from the other repeat infringer cases that mostly deal with ordinary consumer providers.
Needless to say, the lawsuit has the potential to create another shockwave in the industry. If an Internet provider can indeed be liable for servicing hotels, resorts, or other large companies that have hundreds of users themselves, it will have to be much more careful.
The complaint doesn’t mention whether Bodyguard Productions reached out to the resort directly to address the repeat infringer issue.
A copy of the complaint filed by Bodyguard Productions against Pacific DirectConnect is available here (pdf).