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Court denies ISP safe harbour protection in record label legal battle

By | Published on Tuesday 19 March 2019

Grande Communications

A US court has ruled that American internet service provider Grande has no safe harbour protection in its ongoing legal battle with the Recording Industry Association Of America. Which firstly means that the net firm will be held liable for its users alleged copyright infringement, but also that the previous BMG v Cox case has set an important precedent under American law regarding the liabilities of ISPs claiming safe harbour protection.

The safe harbour, of course, says that internet companies cannot be held liable for their users’ copyright infringement, providing they have systems in place to remove infringing content and deal with repeat infringers when made aware of such things.

There has been much debate over the years as to quite how far internet firms must go with this anti-infringement and anti-infringer activity in order to benefit from the safe harbour. In the BMG v Cox case, ISP Cox Communications was accused of running a deliberately shoddy system for dealing with repeat infringers, so that it could claim to be safe harbour compliant but without actually doing anything about those who repeatedly infringe.

BMG argued that such behaviour should mean Cox did not enjoy safe harbour protection. It won the case, though the original ruling was overturned on appeal because of a procedural technicality. The appeals court pretty much upheld the conclusions of the initial judgement regarding Cox’s liabilities, but the net firm settled with the music company before a second full trial could take place to fully set those conclusions in stone.

Grande has been accused of operating a similarly slack system for dealing with infringers and infringement on its network. With that in mind, the RIAA reckoned that, if Cox was liable for its users’ infringement, so was Grande.

The court has now concurred with that position in a summary judgement. Noting that US copyright law says that those seeking safe harbour protection must “reasonably implement” a policy for cutting off repeat infringers, that new court ruling then quotes the BMG v Cox judgement, to the effect that “an ISP has not ‘reasonably implemented’ a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion”.

The new judgement also cites a magistrate judge’s opinion on the case from back in December, which concluded that the “undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer’s internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer’s account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice”.

Grande tried to distinguish itself from Cox by arguing that its rival “failed to follow through on its own policy” because it considered the evidence against certain users, concluded that said users should probably have their accounts terminated, but then declined to do so. Grande said it never got as far as considering the evidence and concluding that any one infringing user should be disconnected.

The court ruled that that was worse. The judgement notes that “Grande thus did even less than Cox to ‘reasonably implement’ the kind of policy required for the protections of … safe harbour”. It then concludes: “If lax enforcement and frequent circumvention of existent procedures disqualifies a defendant from the safe harbour’s protections, the complete nonexistence of such procedures surely must do likewise”.

After considering other arguments relating to the case beyond safe harbour, the judge ruled in Grande’s favour on a couple of points, and then declined to make summary judgement on a bunch more, meaning that the legal battle will now proceed to a full court hearing.

Crucially, if it gets that far, Grande will have to go to court without safe harbour protection. And, more importantly, this judgement seems to suggest that BMG v Cox has definitely raised the bar regarding what net firms must do to rely on the safe harbour.