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Major labels sue yet another American ISP over its infringing customers

By | Published on Thursday 29 August 2019

The major record companies have sued American internet service provider RCN over its copyright infringing customers.

The net firm, says the labels, failed to properly implement its own takedown and repeat infringer policies and therefore should not be allowed to rely on safe harbour protection to avoid liability for its users’ infringement. And if that sounds very familiar, that’s because this is pretty much a carbon copy of three existing lawsuits filed by the labels against three other American ISPs: Cox, Charter and Grande.

“Defendants operated RCN as a haven for infringement”, the new lawsuit claims, adding that the net firm heavily promoted the high internet speeds it offers, something that would appeal to those looking to download lots of unlicensed content. “Defendants’ material contribution to RCN’s subscribers’ infringement was both wilful and extensive, and it renders defendants liable for contributory copyright infringement”, it then states.

Knowing RCN will immediately argue that the safe harbour in US copyright law specifically protects it from liability for contributory copyright infringement, the lawsuit goes on: “Although RCN purported to adopt a policy to address repeat infringers, RCN in reality never adopted or reasonably implemented a policy that provided for the termination of repeat infringers – despite receiving over five million infringement notices”.

As a result, the lawsuit declares, that purported repeat infringer policy was a “sham” and “RCN’s conduct renders it ineligible for safe harbour immunity from copyright liability under the Digital Millennium Copyright Act”.

All of these arguments featured in the aforementioned cases against Cox Communications, Charter Communications and Grande Communications.

The legal team at RCN will likely be most familiar with the latter of those previous cases, given RCN and Grande have been in common ownership since 2016. And the labels’ new lawsuit repeatedly cites a summary judgement in that particular case from earlier this year, which deprived Grande of safe harbour protection because it had a shoddy system for dealing with repeat infringers.

This all began with BMG successfully suing Cox over its shoddy systems for tackling infringing customers back in 2015. Before that case American law was somewhat ambiguous as to how effective a tech firm’s takedown and repeat infringer systems needed to be for said tech firm to rely on the copyright safe harbour to avoid being held liable for the infringement of its users. Despite some complications in that case, BMG v Cox arguably raised the bar, hence the resulting lawsuits pursued by the majors.

It remains to be seen how RCN responds to this carbon copy litigation. Probably with a carbon copy defence. Though, given the way the other cases have gone – or seem to be going at the moment – that probably won’t be enough to avoid liability.