Commentary

Windstream Can't Prevent Future Copyright Suits

Last year, Internet services provider Windstream went to court in an attempt to pre-empt the music publisher BMG from filing a copyright infringement lawsuit.

At the time, BMG had recently won a $25 million verdict against Cox Communications, which was found to have enabled piracy by failing to police file-sharing by its subscribers. Windstream said in its court papers that it had been threatened by BMG, which allegedly accused the carrier of allowing its users to infringe copyright. The Internet service provider sought a declaratory judgment stating that the company wasn't liable for infringement by users.

This week, U.S. District Court Judge Kimba Wood in New York dismissed Windstream's complaint as premature. "Windstream has not identified an actual case or controversy sufficient to give this court jurisdiction," she wrote in a 20-page ruling.

She added that Windstream's claims were too broad for her to address. "Rather than seeking defined declarations of noninfringement regarding existing or foreseeable disputes about specific copyrights and instances of infringement, Windstream seeks broad declarations about every possible conflict that has occurred or could occur in the future," Wood wrote.

The dismissal comes several weeks after Internet service provider RCN and BMG resolved a similar dispute on undisclosed terms. Like Windstream, last year RCN sought an order declaring that it had not infringed copyright. The broadband provider said that since 2012 it had received "millions" of notices from BMG's copyright enforcement agent, Rightscorp.

Cox is currently appealing the $25 million copyright infringement verdict against it to the 4th Circuit Court of Appeals. The company has drawn support from a broad array of groups, including advocacy organizations like the Electronic Frontier Foundation and Public Knowledge, as well as industry associations like the Internet Commerce Coalition.

"Because Cox doesn’t host subscribers’ content but only provides the network through which their data travels, to examine whether that data infringes copyright, Cox would need to use deep-packet inspection to investigate every packet that subscriber sends and receives. That level of monitoring is frighteningly privacy-invasive and clearly not contemplated by the law," the EFF wrote in a blog post about the case. "Even if ISPs did examine their subscribers’ traffic, determining whether a particular file is infringing (rather than in the public domain, licensed, or a fair use) is a difficult call even for courts and copyright lawyers, and even for the rightsholders themselves."

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