The major record labels yesterday filed another lawsuit demanding that an Internet service provider terminate many more subscribers for alleged copyright violations.
Universal, Sony, and Warner sued Frontier Communications in US District Court for the Southern District of New York, alleging that the DSL and fiber ISP with 3.5 million subscribers “received hundreds of thousands of copyright infringement notices from copyright owners” but “provided known repeat infringers with continued access to and use of its network and failed to terminate the accounts of, or otherwise take any meaningful action against, those subscribers. In reality, Frontier operated its network as an attractive tool and safe haven for infringement.” Frontier “chose not to act on those notices and address the rampant infringement on its network,” the companies claimed.
Frontier said it “has terminated many customers about whom copyright owners have complained” and will fight the lawsuit.
The lawsuit was filed amid concerns that a $1 billion judgment against Cox Communications will cause ISPs to terminate more customer accounts and “punish the innocent and guilty alike,” as we reported Monday. Cox appealed the jury-issued penalty to the US Court of Appeals for the 4th Circuit, and its appeal received support from groups that are often on opposite sides of other major legal debates.
Consumer-advocacy groups and trade groups for ISPs urged the appeals court to overturn the ruling, saying that Internet providers are ill-suited to be copyright enforcers and that terminating subscribers is too harsh a penalty to be applied en masse. Cutting off residential Internet connections because of one subscriber deprives others using the same account in the same home of vital access to online services, consumer groups noted. The groups also pointed out that the lack of residential broadband competition in the US means that terminated subscribers will have trouble finding other service.
Three associations representing libraries joined the consumer groups in a court brief, arguing that cutting off an account because of the actions of one user “potentially cuts off every household member or—in the case of a school, library, or business—every student, faculty member, patron, and employee who shares the Internet connection.” Trade groups for ISPs also said the copyright-infringement notices sent by record labels to broadband providers are often too vague to act on.
“When these music companies sued Cox Communications, an ISP, the court got the law wrong,” the Electronic Frontier Foundation wrote. “It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business’s account after a small number of accusations—perhaps only two.”
Cox’s appeal is also supported by the Internet Association, a lobby group for major websites including Amazon, eBay, Facebook, Google, Microsoft, Reddit, Spotify, and Twitter.
Lawsuit seeks $857 million, $300,000 per work
In yesterday’s lawsuit, the record labels said that the hundreds of thousands of copyright infringement notices sent to Frontier advised the ISP “of its subscribers’ blatant and systematic use of Frontier’s Internet service to illegally download, copy, and distribute copyrighted works through illicit BitTorrent sites and other online file-sharing services.” They claimed that Frontier “deliberately refused to take reasonable measures to curb its subscribers from using its service to infringe on the copyrights of others, including Plaintiffs, despite having direct knowledge of particular subscribers engaging in specific, repeated acts of infringement.”
The record labels describe Frontier providing Internet service in an ominous manner, writing that “Frontier has deliberately exploited the New York market, establishing network operations in this district, selling its services to over 80,000 New York households, and advertising its Internet service to potential subscribers in the state.”
As in the Cox case, the labels argue that Frontier is liable for “contributory” and “vicarious” copyright infringement. They ask for statutory damages of $300,000 for each of 2,856 works that were allegedly infringed—$150,000 for the contributory infringement and $150,000 for the vicarious infringement in each of the 2,856 cases. That adds up to nearly $857 million. In the Cox case, the jury awarded damages of $99,830.29 per work.
The labels filed an exhibit listing the 2,856 works by musicians such as 2Pac, 50 Cent, Amy Winehouse, Ariana Grande, Bon Jovi, Def Leppard, Drake, Elton John, Eminem, Ice Cube, Jay Z, Justin Bieber, Lana Del Rey, Lil Wayne, Ludacris, Nas, Nicki Minaj, Nine inch Nails, Nirvana, Rihanna, Rush, The Beatles, The Cranberries, The Police, The Rolling Stones, The Weeknd, Tom Petty, U2, Guns N’ Roses, UB40, Beyoncé, Bruce Springsteen, Carrie Underwood, Daft Punk, Elvis Presley, Journey, Korn, Leonard Cohen, Mariah Carey, Meghan Trainor, Michael Jackson, One Direction, Pink Floyd, Fleetwood Mac, Led Zeppelin, David Bowie, Wiz Khalifa, Dua Lipa, Prince, and various others.
“The use of Frontier’s network by its subscribers to copy and distribute infringing copies of Plaintiffs’ copyrighted works undercuts the legitimate music market, depriving Plaintiffs, and those recording artists whose works they sell and license, of the compensation to which they are entitled,” the lawsuit said.
Lawsuit calls broadband fees “illicit revenue”
Yesterday’s lawsuit claimed that Frontier is guilty of contributory infringement because it “facilitated, encouraged, and materially contributed to such infringement by continuing to provide its network and the facilities necessary for its subscribers to commit repeated infringements. Frontier had the means to withhold that assistance upon learning of specific infringing activity by specific users but failed to do so.”
The labels claimed that “Frontier marketed and promoted the high speeds of its network to attract those using peer-to-peer (‘P2P’) networks to infringe.” The labels’ claim of vicarious infringement alleges that “Frontier earned illicit revenue through user subscription fees that it would not have otherwise received from repeat infringers, as well as new subscribers drawn to Frontier’s services for the purpose of illegally downloading copyrighted works.”
The record labels also have a pending lawsuit against Charter Communications, the second-biggest home-Internet provider after Comcast. In that suit, the labels similarly claimed that high Internet speeds fuel piracy.
The idea that Internet subscribers choose specific ISPs because they allow copyright infringement—as opposed to simply taking what is often the only option for high-speed Internet access—was disputed by the groups supporting Cox’s appeal. The Internet Association wrote that account termination “prevents all the lawful uses of the Internet Cox enables” and that the “Internet is an essential and ubiquitous part of modern life… Termination of Internet access, with the consequences that entails, is not reasonable because it is a grossly disproportionate response to accusations of illegal downloading.”
A group representing Cox and other ISPs wrote in a court brief that the Internet “enables access to First Amendment-protected expression and information” and that “[i]t is unavoidable that some people will use Internet service for improper purposes, just as, once invented, telephones were used for wire fraud.”
Frontier said it will fight the lawsuit. “Frontier is not alleged to have done anything directly to infringe any copyright owner’s rights, and in fact has terminated many customers about whom copyright owners have complained,” the company said in a statement provided to Ars. “Frontier believes that it has done nothing wrong and will vigorously defend itself.”