US internet service provider Verizon has told a New York court that it should dismiss a copyright infringement lawsuit filed against it by the major record companies. While it concedes that the labels have won similar lawsuits against other ISPs in the past, it says those judgements “were wrong then and are even less persuasive now”.
Verizon argues that latter point on the basis of a US Supreme Court ruling last year which said that social media companies are not liable for illegal content posted by their users.
While that ruling, in the Twitter v Taamneh case, was in the context of terrorism-related content, and in particular content posted to social media by ISIS, Verizon argues that a similar principle should extend to their dispute with the record labels, because the majors want ISPs to be held liable for the illegal activity of users of their network sharing music online.
“As the first district court to consider the issue after [Twitter v Taamneh]”, the ISP’s legal filing declares, “this court now has the chance to reject that premise. It should do so. The complaint should be dismissed".
The majors have sued numerous American ISPs in recent years. The argument underpinning their legal action is that ISPs failed to deal with repeat infringers among their customer bases, despite being alerted to copyright infringement by the music companies. As a result, the ISPs were not meeting their obligations under the copyright safe harbour which reduces the liabilities of internet companies, and so they can be held liable for that infringement.
The first test cases were pursued against Cox Communications, with the majors ultimately winning a billion dollars in damages. The record companies have both settled and won cases against other ISPs, albeit usually with more modest pay outs. An appeals court has also forced a review on the billion dollar damages bill in the Cox case.
For its part, Cox continues to fight the majors on this and recently took the matter to the US Supreme Court. It also raised Twitter v Taamneh when making its case for why the Supreme Court should review the dispute.
It wrote that lower court decisions which held Cox liable for copyright infringement “based on passive provision of internet services with knowledge of infringing conduct” conflict with Twitter v Taamneh’s “rejection of liability based on mere knowledge of wrongful conduct”.
Elsewhere in its response to the majors’ lawsuit, Verizon writes “when people do bad things online, their internet service providers are not typically the ones to blame”. The music companies should have filed lawsuits against the individual Verizon customers infringing their rights, it argues, “yet they made a calculated choice not to sue those people”.
Long-term followers of the music piracy story will remember that, actually, for a time the American record industry sued thousands of individuals who illegally shared music online. But that anti-piracy initiative was ultimately deemed ineffective, resulting in a new strategy of lobbying and litigation to force the ISPs to play a more proactive role in stopping music piracy.