ISP disputes music publishers ownership of copyright. WARNER BROS v. CHARTER

A copyright is a set of exclusive rights granted to the creator of a new artistic expression. In the United States an artist is granted a copyright when the artist fixes their work in a tangible medium. This means when a painter paints a picture, a photographer takes a picture or a singer records a song they are granted a copyright to their work. A copyright gives an artist the exclusive right to reproduce, distribute, perform, display, transmit, and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

The United States Copyright Office, a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the United States. A copyright is granted to the creator of a new work when the work is fixed in a tangible medium, however registration of the copyright strengthen’s a copyright owner’s claim to the work and grants the copyright owner additional rights. One of those rights is the right to file suit for copyright infringement in United States Federal Court. To maintain a copyright infringement suit, a plaintiff must show he or she owns a valid copyright, and the defendant actually copied the work. Therefore registration of a copyright is a prerequisite to filing a suit for copyright infringement.

The registration requirement may seem mundane, however one defendant is making registration it central defense. In WARNER BROS. RECORDS INC., v. CHARTER COMMUNICATIONS, INC., 19-cv-00874 (D.C.CO 2019) the defendant is claiming that it should be excused from liability for copyright infringement because the plaintiff did not properly register its copyrights.

The plaintiff in this case is several music publishers that claim the defendant is liable for copyright infringement committed by customers of the defendant. The defendant is an Internet Service Provider. Normally Internet Service Providers are shielded from liability for the actions of customers. Internet service providers (ISPs) generally have DMCA safe harbor immunity from copyright infringement liability for third-party content. However a case in Virginia was recently decided in favor of the copyright owners and the ISP, Cox Communications, was found liable for $1 billion in damages for contributing to copyright infringement. In that case Cox was found to not adequately respond to reports of copyright infringement and lost DMCA safe harbor immunity.

While the defendant in this case could hope that the court will apply DMCA safe harbor immunity, the defendant instead is going on the offensive. The defendant claims that the plaintiff lacks standing to sue for copyright infringement because the plaintiff’s copyright registrations are defective.

Plaintiffs registered most sound recordings as works “made for hire” (“WFH”), a box Plaintiffs checked when registering the works for protection with the U.S. Copyright Office. For these registrations to be accurate, Plaintiffs must have valid, signed work for hire agreements with the artists who created the works. The defendant reviewed a sample of 110 of the more than 6000 works the plaintiff claims ownership of. Of those 110 works, the defendant claim at least 40 of those works did not have work for hire agreements.

The defendant requests that the court order the plaintiff to produce the work for hire agreements for the remainder of the 6000 works at issue in the case. Some might think this is a delaying tactic, however the defendant’s argument is based on a strict reading of the law. It will be interesting to see what the court decides and whether the plaintiff can produce work for hire agreements for the more than 6000 works it claims were infringed.

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