Commentary

Internet Service Provider Argues It's Not Responsible For Piracy By Subscribers

Late last year, a jury in Alexandria, Virginia decided that Cox Communications should pay $25 million to music publisher BMG for piracy by broadband users.

The jury apparently accepted BMG's argument that Cox should have disconnected subscribers who were accused by BMG of copyright infringement. The verdict was surprising for many reasons, including that it seemed to mark the first time a broadband carrier was found liable for piracy by its users.

Cox has asked the trial judge to vacate the jury's verdict; that request is still pending.

Now another Internet service provider, RCN, is going on the offensive in a similar dispute. This week, RCN asked a federal judge in Manhattan to issue a declaratory judgment that it didn't infringe copyright.

"RCN provides legitimate communication facilities that are neither intended nor designed to infringe copyrights, and the additional stresses placed on RCN’s network by infringing activities makes RCN another victim of this problem, not a perpetrator," the company says in its complaint.

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"Because RCN does not operate BitTorrent applications, RCN has no way to control how those applications function or to stop them from being used to commit copyright infringement," the provider adds.

RCN alleges it has received "millions" of notices from Rightscorp -- BMG's copyright enforcement agent -- about supposed piracy by subscribers. While RCN says it began receiving notices in 2012, the dispute with BMG has escalated in recent months. The Internet service provider says it received letters from BMG's counsel in April and May accusing the service of engaging in copyright infringement by failing to disconnect allegedly infringing subscribers.

Those allegations "cast a pall over RCN’s business, placing RCN in the untenable position of incurring a growing potential liability for copyright infringement by continuing to conduct its business," the company says.

What's more, the notices sent by Rightscorp appear to have been problematic -- to say the least. One issue with the notices is that they're generated "based on the detection of a potentially infinitesimally small portion of an alleged copyrighted work," RCN says. "As a result, the notification letters generated by the Rightscorp system do not necessarily reflect the actual duplication of a copyrighted work or even a substantial portion of that work," the provider says.

Also, according to RCN, Rightscorp can only detect whether copyrighted materials are available for download on peer-to-peer networks, not whether users actually have downloaded files.

RCN's case is still at a preliminary stage, but could end up drawing much attention, if Cox's history is anything to go by.

Last year, a coalition of high-profile digital rights groups weighed in on Cox's side with the court. "It is simply unthinkable that a person could be deprived of a basic, vital service, practically essential to contemporary societal participation, based on nothing more than unadjudicated, unverified, unreliable allegations of civil wrongdoing," the Electronic Frontier Foundation and Public Knowledge argued in a friend-of-the-court brief. "It is bad for consumers and bad for society when companies like Rightscorp can wield the penalties of copyright law as a hammer to threaten without adequate discretion, investigation, or caution."

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