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BMG files response in legal dispute with two more American ISPs

By Chris Cooke | Published on Friday 2 September 2016

BMG has hit back at efforts by two American internet service providers to get a declaratory judgment – so a judicial clarification of the law – regarding their liabilities when customers use the net access they provide to do all sorts of naughty pirating of pop tunes and the like.

As previously reported, net provider RCN requested such a declaratory judgment back in June. The ISP sought judicial opinion on the matter in the wake of the Cox Communications ruling, in which BMG successfully argued that that particular ISP’s internal policies to tackle suspected file-sharers amongst its customer base were insufficiently competent for the internet firm to benefit from those much discussed safe harbours.

The safe harbours say that internet companies are not liable for copyright infringement when their customers use their services to distribute content without licence, providing they take action when made aware of infringing activity on their servers. In the US, BMG – via its anti-piracy agent Rightscorp – has been particularly prolific in making ISPs aware of suspected file-sharers among their customer bases.

Having been on the receiving end of a flood of file-sharing notices from BMG and Rightscorp, and fearing it could be next in line for litigation like that pursued against Cox, RCN requested that the court formally clarify its liabilities. The internet firm wrote in its filing requesting the declaration that: “The central question for this court’s determination is whether an internet service provider should be held liable for copyright infringement simply because it provides internet connectivity to its customers”.

But in its formal response, BMG has argued that this is not a matter for declaratory judgment. For starters, it says, there is no concrete dispute between BMG and RCN – or Windstream, the other ISP seeking a similar judgement on this matter – and there is currently no actual threat of litigation on its part.

Moreover, the Cox case centred on whether or not the ISP sufficiently met its obligations regarding assisting rights owners in tackling infringement and infringers in order to qualify for safe harbour protection. Assessing any one ISPs efforts in this regard would require a proper court case to consider all and any evidence.

In conclusion, BMG says, according to Torrentfreak: “RCN seeks a broad ruling that it does not infringe BMG’s copyrights at any time or anywhere, regardless of the factual circumstances or its actual knowledge of copyright infringement by RCN subscribers. That is not the proper subject of a declaratory judgment action and does not state a legally valid claim under the Digital Millennium Copyright Act or the Copyright Act”.

For its part, RCN has already responded, insisting that the flood of takedown letters from Rightscorp, sent on BMG’s behalf, constitute a concrete dispute, and therefore this is an appropriate matter for a declaratory judgment request.

We now await to see what the good old judge reckons.