We’re Not Liable for Pirating Subscribers, Windstream Tells Court

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity.

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

This verdict caused shockwaves in the ISP industry when several companies suddenly realized that they could become the next target.

With 1.1 million subscribers in the United States, Windstream is one of the ‘candidates.’ The company is well aware of this risk but instead of waiting around the ISP is taking the initiative.

This week Windstream filed a complaint for declaratory judgment at a New York District Court, directed against music rights group BMG and its anti-piracy partner Rightscorp.

For several years BMG has accused Windstream and its subscribers of various copyright infringements. The notices they send are issued by the monitoring outfit Rightscorp and often come with a settlement demand for the account holders.

Windstream, however, says that it’s not in any way obligated to forward these notices to the subscribers in question. Instead, the ISP points out that it’s a mere conduit for Internet services.

“Similar to other ISPs, Windstream only provides Internet connectivity, making it a mere conduit for the transmission of Internet services,” Windstream writes in its complaint.

“As a pipeline to the Internet, Windstream does not monitor or otherwise control the manner in which its subscribers utilize their Windstream Internet connection and does not initiate, control, select or modify the material or content transmitted by Windstream subscribers over Windstream’s network.”

According to the ISP, the notices sent by Rightscorp also lack sufficient information to prove that actual copyright infringements have taken place by their customers.

“Defendants have no direct evidence that any Windstream subscriber is engaged in direct copyright infringement and Windstream, as a mere conduit for the transmission of Internet services, cannot be held liable for direct copyright infringement,” the complaint reads.

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Windstream previously made its position clear to both BMG and Rightscorp and tried to come to a resolution, but that didn’t stop more notices being sent to the ISP.

Instead, the companies maintain that Windstream is liable for contributory and vicarious copyright infringement, and accuse it of failing to disconnect repeat infringers.

“Defendants claim that Windstream’s knowledge and allowance of unchecked infringement on its network makes Windstream liable for secondary copyright infringement and actual or statutory damages as high as $150,000 per infringed work.”

These allegations go way too far, Windstream believes. As a result, the company is seeking a judgment declaring that it’s not liable for the infringing actions of its subscribers under the DMCA’s safe harbor provisions, among other things.

“Defendants have no direct evidence that any Windstream subscriber engaged in direct copyright infringement and Windstream, as a mere conduit for the transmission of Internet services, cannot be held liable for direct copyright infringement,” they write.

In addition, the ISP says that it doesn’t authorize, direct or encourage its subscribers to pirate anything. Nor does it profit from the alleged copyright infringements that may take place on their network.

With this lawsuit Windstream hopes to obtain legal clarity on several key issues. Aside from the broader liability question, the ISP also asks the court to declare that it’s not required to comply with or respond to Rightscorp’s notices at all, under the DMCA.

Windstream’s lawsuit is similar to the one filed by RCN earlier this month, although the latter doesn’t include Rightscorp as a defendant. These are likely to be followed closely by the larger ISPs, as the outcomes will have a major impact on the industry.

The full complaint is available here (pdf).

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