RCN Seen as Latest, Surely Not Last, ISP Suit by Music Industry
The music industry strategy of targeting cable ISPs with contributory copyright infringement litigation won't stop with last week's federal lawsuit against RCN (see 1908280044), legal experts said. It's less clear what the entertainment companies' end goal is. Some see it about getting ISPs to crack down harder on infringing conduct by subscribers. Others wonder if the aim is motivating lawmakers to move for a legislative solution. The RIAA didn't comment.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
After ditching a decade ago its strategy of suing individual copyright violators, the music industry has focused more on ISPs, and BMG's victory against Cox (see 1802010026) “put some wind in the sails for the plaintiffs "to keep pursuing a litigation strategy," said Allen Bargfrede, an entertainment lawyer and music industry consultant. The remanded BMG/Cox suit was settled (see 1808240013).
If they continue to chalk up victories like with Cox, labels either will get big settlements or see ISPs change their policies or both, Bargfrede said. An added benefit is the ISP legal strategy doesn't negatively affect public perception of the labels the way suing individuals did, he said. Many of the same music labels also are suing cable ISPs Charter Communications (see 1903250004), Grande Communications (see 1802080001) and Cox Communications (see 1808020009).
David Lowery, a University of Georgia music industry lecturer and lead singer of rock bands Cracker and Camper Van Beethoven, echoed that the litigation seems aimed at getting service providers to proactively discourage torrent-style piracy, "which remains a significant problem." Broadband sellers are obliged to have repeat infringer policies to prevent this sort of activity to maintain their safe harbor, but "in practice many do not," he emailed.
Beyond prodding ISPs into substantially changing their policies so there's aggressive clamping down on suspected file sharing, the other music industry goal seems to be a copyright law change, said copyright lawyer and Loyola University-Chicago law professor Matthew Sag. He said copyright owners are surely pleased with big awards from litigation, but the cost and complexity of litigation means damages themselves likely aren't an end goal.
After EU copyright law updates earlier this year (see 1904150001), there's energy among content owners to push for legislative change, and the ISP suits could be an evidentiary foundation, Sag said. If the music industry wins in court, that's proof file sharing is a big problem, and if it doesn't, that could be used to argue the industry has few effective legal tools available and needs more, Sag said. Such a copyright rules change could get substantial pushback, with the entertainment industry facing allied Silicon Valley, telcos and ISPs, he said.
Even before RCN, it was clear multiple such suits were coming and the strategy seems to be to start with smaller regional ISPs "and work their way up the food chain," Sag said. Some "solid victories" against smaller ISPs could lead to private agreements with large ISPs or a compromise on legislation, he said. America's Communications Association didn't comment.
Litigation follows last year's passage of the Music Modernization Act and years of declining music industry revenue due to piracy, said Jeff Apruzzese, Drexel University music industry program associate director. Apruzzese, formerly a member of the rock band Passion Pit, agrees the music sector is likely using the litigation to build a case toward legislative change. "As we're becoming more digital music consumption, our laws and legislation are so far behind," he said. Meantime, record labels will undoubtedly keep pursing litigation “just to set an example," he said.
The music industry seems to be pushing for tighter policing. It's starting with large but not dominant ISPs "that are in the industry's eyes the least serious about responding to complaints about infringement," emailed James Grimmelmann, Cornell Law internet and intellectual property law professor. "Just as they want ISPs to take action against some customers to deter the rest, the music industry may be taking action against some ISPs to deter the rest."
Bargfrede said ISPs face practical difficulties in music labels asking them to take it on full faith that notices from the Rightscorp copyright infringement detection system are accurate. He said implementing a policy that has the opportunity for broadband subscribers to respond or appeal "is probably not an unreasonable solution."