The Recording Industry Association of America (RIAA) has filed a copyright infringement lawsuit against Grande Communications, a Texas-based internet service provider (ISP), due to Grande Communications not taking “meaningful action against repeat infringers,” customers who repeatedly download music illegally using BitTorrent. BitTorrent is a peer-to-peer network that allows for the distribution of electronic files.
The Digital Millennium Copyright Act (DMCA), a topic we’ve covered frequently, generally provides ISPs with “safe harbor” from liability for acts of copyright infringement committed by their users; however, the law stipulates that these services must “adopt and reasonably implement” a policy for repeat infringers that includes termination of subscriber accounts in “appropriate circumstances.” The RIAA does not believe Grande Communications should qualify for safe harbor under the DMCA because the ISP continues to allow known repeat infringers to use their service. “Neither Grande or its management company Patriot has taken any meaningful action to discourage this continuing theft, let alone suspend or terminate subscribers who repeatedly commit copyright infringement through its network, as required by law,” says the suit, according to Billboard and TorrentFreak.
TorrentFreak also indicates that the RIAA sent Grande Communications notices that 1,840 customers had engaged in 100 instances of infringement, and nearly 500 of those customers had generated 500 infringement notices collectively. Also, more than 200 subscribers generated 1,000 notices each, including some customers generating more than 2000.
This case probably sounds like déjà vu because of the BMG Rights Management infringement suit against ISP Cox Communications, which resulted in a major blow for Cox, and will likely have major ramifications for ISPs and the kinds of policies they implement for repeat infringers. BMG sued Cox in 2014 for copyright infringement because Cox failed to terminate the accounts of known repeat infringers. Prior to trial, a ruling on the parties’ motions for summary judgment by Judge Liam O’Grady of the Eastern District of Virginia provided an inside look at Cox’s repeat infringer policy. Cox relied on a graduated response procedure, giving subscribers multiple “chances” after known infringement, but there were hardly ever permanent terminations for repeated infringers. In fact, accounts were reinstated after written requests from customers, according to very damning emails that were uncovered during discovery. In 2015, a Virginia jury awarded BMG $25 million after finding that Cox was liable for contributory copyright infringement and vicarious copyright infringement, and that its conduct was willful. Last August, Judge O’Grady upheld the verdict.
The RIAA is seeking statutory damages, actual damages and Grande Communications’ profits from the infringement.
For more on this case and others, please stay tuned to The Fried Firm Blog.