The RIAA is suing the San Marcos, Texas-based ISP Grande Communications for copyright infringement on behalf of its member companies, in a case that potentially could help define how Internet services must deal with consumers who repeatedly download music and other copyrighted works illegally.
The lawsuit, filed today in an Austin, Texas, district court, accuses Grande of “refusing to take meaningful action against repeat infringers” – users who repeatedly downloaded music illegally over BitTorrent networks.
Generally, ISPs operate under the Digital Millennium Copyright Act (DMCA), which gives them “safe harbor” from liability for copyright infringement committed by their users. (The users themselves can still be liable.) But a provision in the 1998 law requires digital services that operate under the safe harbor to implement “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”
Such “repeat infringer” policies have received more attention in the last decade, as copyright holders have tried to define the limits of the safe harbor. The issue has been especially important since December 2015, when a jury delivered a $25 million verdict in favor of BMG against Cox Communications, on the grounds that Cox didn’t qualify for safe harbor because its repeat infringer policy was inadequately implemented. Cox is appealing the verdict.
Grande, which found out about the suit late Friday, did not comment. Patriot Media, Grande’s parent company, is also named in the lawsuit.
The lawsuit comes after the RIAA accuses Grande of “refusing to take meaningful action against repeat infringers.” The record label trade group notified Grande that 1,840 of its customers had each engaged in 100 instances of infringement, according to the lawsuit – and that more than 208 had each infringed more than 1000 copyrights. The information about infringement comes from Rightscorp, which also provided BMG with the data for its lawsuit against Cox.
Grande was notified of the copyright infringement although it is not known whether the ISP then forwarded them to its users. “Despite their knowledge of repeat infringements,” the RIAA’s complaint says, “Defendants have permitted repeat infringers to use the Grande service to continue to infringe Plaintiffs’ copyrights without consequence.”
The Cox verdict has left media companies and ISPs uncertain about what kind of repeat infringer policies services have to use. (Emails that made it seem as though Cox didn’t take the issue seriously may have contributed to the outcome of the case.) Last year, two other ISPs, RCN and Windstream, each pre-emptively sued BMG to establish their eligibility for safe harbor; RCN settled and a judge today declared that Windstream’s claims could not be addressed before a suit was filed.
Potentially, the Grande case could have implications that go beyond ISPs. A variety of online services operate under the DMCA safe harbor, including YouTube and other sites that let consumers store or upload content. Although larger services presumably have repeat-infringer policies in place, this result of this case could help define their obligations as well.