Music Group Protests ISPs Move for a Declaratory Ruling on Piracy Liability

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Music rights group BMG says that Internet providers RCN and Windstream should not be allowed to obtain a declaratory judgment on their potential liability for pirating subscribers. According to BMG, the providers are improperly trying immunize themselves, hiding behind the DMCA's safe harbor.

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Internet provider RCN is among the companies that are gravely concerned about a recent verdict against Cox, which was helf liable for pirating subscribers last year.

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 targeting it its subscribers.

Many of these notices come from BMG and its anti-piracy partner Rightscorp, which accuse RCN of being liable for the actions of its customers.

RCN was not pleased with these allegations and took legal action a few weeks ago. The Internet provider filed a lawsuit against music rights group BMG at a New York federal court, seeking declaratory judgment on the matter.

“The central question for this Court’s determination is whether an Internet service provider should be held liable for copyright infringement simply because it provides Internet connectivity to its customers,” RCN wrote.

The Internet provider argued that it is not liable for the infringements of its subscribers because it is merely passing on traffic, which allows the company protection under the DMCA’s safe harbor provision.

RCN is not the only ISP to have taken action. Their complaint was swiftly followed by a similar case from Windstream, which relies on many of the same arguments.

BMG is not happy with these developments and has started to push back in court. In both cases, the music rights group has now asked the court for leave to file a motion to dismiss the complaints.

According to BMG, there is no concrete dispute or threat of an actual lawsuit on their part. Instead, they accuse the ISPs of trying to get broad immunity without going into specifics, such as their repeat infringer policies.

“RCN appears to seek to resolve only its liability for past instances of infringement, but declaratory judgment actions are not the proper vehicle by which to do so,” BMG’s lawyers write in the RCN case.

“Conversely, to the extent RCN seeks to immunize itself against liability for future infringement, there is no factual record on which to make such a decision. A Court cannot offer a declaratory judgment immunizing purely hypothetical future conduct from secondary liability for copyright infringement.”

As the Cox case has shown, the ISPs’ actions and policies play a crucial role in determining liability. BMG accuses RCN, and in a similar filing Windstream, of trying to escape this responsibility.

“In sum, RCN seeks a broad ruling that it does not infringe BMG’s copyrights at any time or anywhere, regardless of the factual circumstances or its actual knowledge of copyright infringement by RCN subscribers. That is not the proper subject of a declaratory judgment action and does not state a legally valid claim under the DMCA or the Copyright Act.”

RCN does not agree with the music group’s characterization of its request. In a reply, the ISP highlights that it received millions of infringement notices from BMG over the past years, in which it demanded compensation from RCN.

“They present a substantial, real, and immediate controversy in that BMG has accused RCN of specific and continuing instances of copyright infringement and has provided a definitive measure of the damages for which RCN is allegedly liable,” RCN writes in its reply.

“As a result, there is nothing abstract or hypothetical about the relief RCN is seeking in this declaratory action. RCN properly seeks a declaration that BMG’s allegations lack merit and that RCN is not liable for purported copyright infringement occurring through its network.”

As such, RCN asks the court not to allow the motion to dismiss to be filed.

Windstream has yet to reply to the allegations, but it’s expected that they will follow the same course as their colleague Internet provider, as they’ve previously done.

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