In a novel lawsuit that tests the bounds of service provider liability, two music publishers brought suit against an ISP for contributory copyright infringement for allegedly facilitating infringement by failing to terminate the accounts of broadband subscribers who were purportedly repeat infringers that had unlawfully downloaded copyrighted music from BitTorrent sites. (BMG Rights Management (US) LLC v. Cox Enterprises, Inc., No. 14-01611 (E.D. Va. filed Nov. 26, 2014)).

The lawsuit raises many issues:

• What are the obligations of a broadband provider that receives a notice from a copyright holder about a suspected repeat infringer?
• How reliable are the infringement notices sent to the ISP?  How can an ISP decide when a subscriber is a repeat infringer?
• Does this dispute implicate the voluntary “six strikes” Copyright Alert System implemented by certain ISPs?
• Can the ISP claim immunity under the DMCA §512 safe harbor?  How would a court interpret DMCA §512(i), regarding implementing a “repeat infringer” termination policy, with respect to an ISP?
• What are the bounds of vicarious liability with respect to an ISP having paid subscribers who allegedly commit infringement?

While many of these issues have not been directly addressed recently by U.S. courts, the lawsuit brings to mind the pre-DMCA decision in Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995).  There, the court held that an ISP serving as a passive conduit for copyrighted material was not liable as a direct infringer, but allowed contributory copyright infringement claims to go forward based upon disputed issues of fact as to whether the operator had sufficient knowledge of infringing activity.  Obviously, with the enactment and interpretation of the DMCA and the evolution of new business models, the world has changed and it will be interesting to see how a court views these issues 20 years later.

The current dispute also is reminiscent of the Australian decision in Roadshow Films v iiNet Limited [2012] HCA 16, where the High Court of Australia ruled that an ISP did not “authorise” the infringement of copyrighted films by its customers, despite its inactivity after receiving notices from a copyright association about suspected ongoing infringement by the ISP’s customers.

We will be watching this dispute and await any judicial rulings that might unpack some of the above copyright issues.