• by Wendy Davis  @wendyndavis, June 30, 2017

Internet services provider Windstream is asking a federal appellate court to revive the company's battle with music publisher BMG over alleged piracy by users.

The legal dispute between Windstream and BMG dates to June 2016, when Windstream sought a declaratory judgment stating it wasn't liable for infringement by users. The Internet services provider took that step shortly BMG won a $25 million verdict against Cox Communications, which allegedly enabled piracy by failing to police file-sharing by its subscribers. (Cox is appealing that decision to the 4th Circuit Court of Appeals.)

Windstream said in its court papers that it had been threatened with litigation by BMG, which allegedly accused the carrier of allowing its users to infringe copyright. Since 2011 BMG, and its enforcement agent, Rightscorp, have sent "millions" of notices to Windstream about alleged piracy, the broadband provider says.

In April, 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.

Windstream is now asking the 2nd Circuit Court of Appeals to reverse Wood's order, arguing that the ruling leaves the company "in an untenable situation."

"Despite receiving millions of infringement notices from copyrights holders and their agents, the district court’s judgment unjustly forbids an ISP from seeking a judicial declaration that it is not liable for the alleged infringement described in those notices or that the notices are invalid and ineffective as a matter of law," Windstream argues in its appellate papers, filed Thursday. "Instead, the ISP must stand helplessly by -- while the infringement notices and the ISP’s potentially catastrophic liability continue to accumulate on a daily basis."

Wood also said Windstream's claims were too broad to justify its complaint, noting that the company didn't point to specific allegations of infringement. But the ISP counters that a judge doesn't need to consider allegations regarding specific pieces of copyrighted music in order to determine that the company isn't responsible for piracy by users. "The analysis would remain the same regardless of which BMG-copyrighted work is at issue," Windstream argues.

BMG is expected to respond to Windstream's arguments in August.