The Internet is becoming an increasingly prevalent medium for personal communication and an essential means of commerce, now popularly known as e-commerce. As it grows, the unfortunate by-products of traditional commercial and personal interactions become more and more prevalent online. With intellectual property law seeping into the realm of cyberspace various forms of copyright infringement are abound on the Internet. Every individual uses the internet, which today is what water is to humans. In order to access, post or view anything, has to associate themselves with an Internet Service Provider (ISP), which is a company that acts as the concierge for access to the Web.When such users subscribed to an ISP behave wrongly and causes an injury to an unsuspecting third party.
Online piracy is not a new concept and exists in various forms, whether it is Bit Torrent for downloading movies or AresLite or LimeWire for downloading music. Digital content of copyrighted works has spurred on over the years thanks to technological advancements, but so has the massive online pirating of copyrighted music, movies and other works capable of being digitized including Peer to Peer (P2P) software/systems for sharing copyrighted music and/or films online. The Napster[i] case is known to every person wherein Napster Inc., a file sharing system, committed repeated instances of copyright infringement by way of enabling millions of users to upload as well as download copyrighted sound recordings.[ii]
Recently, BMG Rights Management and Round Hill Music (hereinafter, the plaintiffs) clients of Rightscorp, a copyright enforcement agent which threatens ISP’s with multi-stakes lawsuits if the latter do not issue legal notices against ‘repeated copyright infringers’, sued Cox Communications (hereinafter, the defendants) for copyright infringement. The plaintiffs disputed that the ISP is not doing enough to punish those who download music illegally.
As per the Digital Millennium Copyright Act (DMCA), United States,under Title II of the 17 U.S.C. § 511, an ISP can evade financial liability by following the “Notice and Takedown” provisions, if one of its subscribers offer/create an infringing copy online. The main aim of these provisions is that once an ISP obtains notice of the infringement, it needs to take down the illegal/unauthorized material.
In the present case, the plaintiffs filed a copyright infringement complaint against the defendants stating that the latter were encouraging piracy to a gigantic extent. The plaintiffs further alleged that the defendants published policy was to vehemently oppose infringers and possible infringers but they were acting on the contrary. The plaintiff even submitted lengthy and overwhelming evidence which contained a list of the defendants’ subscribers with their IP addresses and the number/counts of copyright infringement acts committed by them. The defendants alleged that the plaintiffs’ backers, i.e. Rightscorp slapped numerous legal notices on them which they believed to be unreasonable, improper, and going as far as to state that they carried the weight of extortion and blackmail. But the defendants also stated that they had taken necessary action by way of terminating their subscribers’ accounts held with them because of the said copyright complaints.
While the case has proceeded to trial by jury, it is easy to guess that the defendants would lose this battle considering the U.S. has always maintained intolerance especially against digital piracy. Moreover, even in a similar previous instance,YouTube had come under fierce legal scrutiny from Viacom for not taking precautionary and recommended action to ward off infringing of copyrighted material. On the other hand it is alleged that this is a frivolous attempt made by Rightscorp so as to garner funds to avoid its near bankruptcy state, since its inception in 2011. But considering that the plaintiffs have accused the defendants of almost 200,000 accounts of being “repeat infringers”, the magnitude of a loss for the defendants could be massive. Furthermore, the plaintiffs are seeking damages for contributory and vicarious copyright infringement and praying for a judicial order requiring the defendants to “promptly forward plaintiffs’ infringement notices to their subscribers.
[i]A & MRecords Inc. vs Napster Inc., 239 F.3d 1004 (9th Cir. 2001).