What happens if an ISP ignores piracy on its network. UMG v. RCN

A copyright grants the creator of a new work of expression certain exclusive rights. The owner of a copyright has the exclusive right to reproduce the work; create derivative works based on the work (i.e., to alter, remix, or build upon the work); distribute copies of the work; publicly display the work; perform the work; and in the case of sound recordings, to perform the work publicly by means of a digital audio transmission. If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be considered copyright infringement. A copyright owner can file a lawsuit to stop copyright infringement with an injunction and get monetary damages for infringement which has occurred.

The United States adopted its copyright law long before the internet was available to most people, therefore the copyright act had difficulties dealing with the unique issues presented by the internet. One of the copyright law issues that was presented by the internet was: When are internet service providers liable for the acts of their users? Internet service providers (ISP) provide their customers with a connection to the internet, or other services related to the transmission of data through the internet. The internet makes it very easy for those who do not respect copyright to reproduce and distribute copyrighted works. ISPs want to sell their services to customers and not be concerned with the actions of their customers. In the past when copyright owners would contact an ISP about infringement happening on the ISP’s network, the ISP was not obligated to help the copyright owner. This forced copyright owners to sue the ISP under the theory of contributory infringement. Neither copyright owners or ISPs were happy with this arrangement.

Congress addressed this issue when it adopted the Digital Millennium Copyright Act (DMCA). Specifically Title II of DMCA, creates a safe harbor for ISPs against copyright infringement liability, provided the ISP meets specific requirements. ISPs must adhere to certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent. The DMCA also includes a counternotification provision that offers ISPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.

UMG RECORDINGS, INC., v. RCN TELECOM SERVICES, LLC, 3:19-cv-17272 (D.NJ 2019) is a case that involves copyright owners suing an ISP for allegedly failing to comply with the DMCA. The plaintiffs in the case are record companies that produce, manufacture, distribute, sell, and license the great majority of all legitimate commercial sound recordings in the United States.

The defendant in the case is a company that operates several internet service provider in the north eastern United States. Some of the users on the defendant’s network use BitTorrent to distribute files. The plaintiffs claim that these using are distributing files which infringe on copyrights owned by the plaintiff.

The plaintiff hired a company, Rightscorp, to discover infringing files being shared via BitTorrent on the defendant’s network and send DMCA take down notices to the defendant. Rightscorp sent the defendant more than five million infringement notices, which identified tens of thousands of the defendant’s subscriber accounts that were engaged in repeated acts of copyright infringement. The defendant did not terminate access to these repeated infringers.

The plaintiff sued the defendant for copyright infringement on the theory that the defendant’s DMCA safe harbor protections have been lost due to the defendant’s failure to terminate repeat infringers.

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