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Now film companies sue an American ISP over its lacklustre repeat infringer policy

By | Published on Friday 30 July 2021


A group of American independent film producers – many of them affiliates of Millennium Media – have filed a lawsuit against US internet service provider Wide Open West – or WOW! if you prefer – accusing the net firm of not properly dealing with repeat infringers among its user base. As a result, the film companies argue, WOW! should be held liable for those users’ copyright infringement.

So, basically, it’s another American ISP being accused of operating shoddy systems for dealing with infringement and infringers on its networks, sufficiently so that – the plaintiffs argue – it should not be able to rely on safe harbour protection from liability for its users’ infringing ways. Since BMG successfully sued Cox Communications on this issue, a plethora of ISPs have been targeted with similar legal action, albeit usually by music rather than movie companies.

There are a couple of other interesting things in the WOW! targeting lawsuit, beyond the novelty of it being pursued by film producers rather than record labels. First in relation to some of the evidence it presents, and second regarding the plaintiffs’ demands.

In all the previous label-led lawsuits of this kind the ISPs have argued – mainly unsuccessfully – that they can’t trust the takedown notices submitted by copyright owners and their anti-piracy agents. Which means just because a flurry of takedowns have been submitted in relation to one user, that doesn’t mean they should automatically sanction or disconnect that user, because a takedown notice is not in itself evidence of infringement.

In the new legal filing, the movie producers actually include an affidavit from the operator of the popular BitTorrent service YTS, who has reached various legal settlements with different film companies in the past. That affidavit confirms that a number of WOW! customers downloaded unlicensed movies via the BitTorrent site.

In terms of the demands made by the film firms, they obviously want WOW! to lose its safe harbour protection and then pay damages to the copyright owners for all the movies that have been specifically identified as being illegally accessed by the ISP’s customers.

However, they also have a couple of other demands. Firstly, that WOW! introduce a strict three strikes policy to deal with repeat infringers moving forward. The court, they say, should “order defendant to adopt a policy that provides for the prompt termination of subscribers for which defendant receives more than three unique notices of infringements of copyright protected works within 72 hours”.

Not only that, but they’d like some web-blocking too. The court should also, they add, “order defendant to block subscribers from accessing notorious piracy websites of foreign origin that are listed in the annual trade report of Notorious Foreign Markets published by the United States government on all networks under its control to prevent further pirating of plaintiffs’ works via the BitTorrent protocol”.

While web-blocking has become a common anti-piracy tactic around the world – with record labels and movie studios routinely getting court orders that force ISPs to block access to piracy sites – in the US such web-blocks have not been embraced, because when Congress considered such proposals all the way back in 2011/2012 the tech sector went into lobbying over-drive and got all such plans deleted.

However, the music and movies industries would like to see web-blocking become as common in the US as in countries like the UK, and it will be interesting to see how the judge responds to this particular request in the WOW! case.