Grande Communications, a Texas-based ISP, has asserted that the music industry is trying to place blame for copyright infringements on the feet of ISPs by making them “de facto copyright enforcement agents”.
Their most recent case filing accuses the record industry of targeting the wrong entities to establish liability for copyright, and in particular remarks how the labels do not take responsibility themselves for directly targeting infringers “due to bad publicity”.
Representatives of the music industry labels that brought a suit against Grande Communications in April 2017 have argued that the company failed to take any meaningful action to discourage infringement and impede repeat offenders.
The ISP, however, argued that existing US copyright law “does not… allow for secondary liability in these circumstances”. It cites the ‘safe harbour’ protection provided by the Digital Millennium Copyright Act, which protects ISPs if they have in place a sufficient policy for dealing with copyright complaints and repeat copyright infringers.
It also claimed there was in fact no evidence provided that “a Grande subscriber even reproduced or distributed a copyrighted work on Grande’s network”. Indeed, Grande argued that the system the record companies use by which copyright infringement is allegedly uncovered is fundamentally flawed in that it cannot actually detect if a file has truly been copied or not.
The ISP further chastised the system’s operator Rightscorp by somewhat cynically arguing that its system is principally used to elicit monetary settlements from the individual users of the ISP. Upon detection of alleged infringement, Rightscorp sends the user a notice with an ultimatum: pay between $20 and $30 now and cease the infringement or face a major lawsuit in the future.
Allegations that are unproven are also provided to the ISPs themselves – “hundreds of thousands… per year” according to Grande – for them to remove the infringing user, and Grande says it leaves the provider in a difficult situation: terminate any and all for unverified allegations of infringement, or face litigation of secondary infringement.
The case is still ongoing so the result remains to be seen, but it will certainly be interesting to see what the US court decides considering a similar issue surrounding the evolution of the regulation of the internet is still under debate in the EU regarding the liability of online internet platforms for infringing work being hosted on their sites (see the earlier blog post on the EU Copyright Directive).