For roughly two decades, copyright holders have been sending takedown notices to ISPs to alert them that their subscribers are sharing copyrighted material.
Under US law, providers must terminate the accounts of repeat infringers “in appropriate circumstances” and increasingly they are being held to this standard.
Several major music industry companies have filed lawsuits against a variety of Internet providers. With help from the RIAA, the companies targeted Cox Communications, Grande Communications, and Charter, hoping to recoup damages for their role in the pirating activities of their subscribers.
The overall theme of these lawsuits is the same. The music companies accuse the ISPs of turning a blind eye to pirating subscribers. This is also made clear in a new complaint that was just filed against several ISPs that operate under the RCN brand.
The lawsuit is again filed by music companies, including Arista Music, Bad Boy Records, Capitol Records, Laface Records, Sony Music Entertainment, Universal Music, UMG Recordings, and Warner Records. Some of these are also involved in the aforementioned cases.
“This is a case about a leading internet service provider knowingly enabling its customers’ massive online copyright infringement of sound recordings,” the music companies allege in a complaint filed at a federal court in New Jersey.
“Defendants operated RCN as a haven for infringement. Defendants promoted RCN’s high internet speeds to customers, knowing that the ability to download copyrighted material illegally using high-speed internet, without repercussions, was a substantial draw for infringers,” they add.
The music companies state that RCN, including several local branches, willingly profited from keeping pirates on board. The ISP advertised high-speed internet which would be particularly appealing to BitTorrent pirates, it’s claimed.
“RCN provides its subscribers with a fully functioning system that allows them to engage in copyright infringement on a massive scale using BitTorrent networks,” the complaint reads.
“And for those subscribers who want to pirate more and larger files at faster speeds, RCN obliges them in return for higher fees. The greater the bandwidth its subscribers require for pirating content, the more money RCN receives.”
We have seen similar claims in related “repeat infringer” lawsuits. Previously it was pointed out that, while it is certainly true that high-speed Internet access is beneficial for pirates, legal users of streaming platforms such as Netflix would benefit as well.
The music companies, however, are convinced that the high speeds lure pirates to RCN. On top of that, they accuse the Internet provider of ignoring repeat infringers, so it can continue to profit from this piracy activity.
The music companies back up their claims with data from anti-piracy tracking company Rightscorp, which previously sent RCN more than five million infringement notices. These notices identified tens of thousands of alleged pirates.
Despite being aware of this copyright-infringing activity, RCN did nothing to stop it, the complaint notes. According to the Rightscorp data, 36,773 subscribers repeatedly engaged in piracy, with hundreds of these being flagged more than 1,000 times.
Since Rightscorp doesn’t monitor all activity, this is likely a small fraction of all the infringing activity occurring over RCN’s network, the music companies add. And despite the high number of repeat infringers, RCN did little to stop it.
“Defendants failed to take any meaningful action to discourage this
wrongful conduct. Instead of terminating repeat infringers—and losing subscription revenue— RCN for years simply looked the other way and chose to allow the unlawful conduct to continue unabated.
“By ignoring the repeat infringement notifications and refusing to take action against repeat infringers, and instead providing those customers with ongoing internet service, Defendants made a deliberate decision to contribute to known copyright infringement,” the complaint adds.
In cases like this, Internet providers can generally rely on the DMCA safe harbor defense, which shields them from liability. However, the music companies argue that RCN lost this right by not having a properly functioning repeat infringer policy.
“Although RCN purported to adopt a policy to address repeat infringers, RCN in reality never adopted or reasonably implemented a policy that provided for the termination of repeat infringers—despite receiving over five million infringement notices. Its purported policy was a sham,” the complaint reads.
The allegations are very similar to the other “repeat infringer” lawsuits we have seen in the past. As in the other cases, the ISP is accused of both contributory and vicarious copyright infringement. The same also applies to RCN’s management company Patriot.
The music companies claim substantial losses for which they want to be compensated. They request actual damages or statutory damages of $150,000 per work. With an illustrative list of more than 1,000 tracks as evidence, a list that may grow even longer, the potential damages are already over $150 million.
A copy of the complaint, filed at the United States District Court for the District of New Jersey, is available here (pdf).