In a good decision for Internet Access Access Providers (IAPs), a court said that IAP Bright House is not responsible for its users' copyright infringing activities because the IAP lacks a direct financial benefit.

The court says that the legal standard for direct financial interests cannot be whether the violation of works for consumers was "a tie" as the word "directly" is read from the test, which means "imposing an on indirect liability." based vicarious agent enables “severely weakened connections between a violation of the behavior of the customer and alleged financial advantages. "Instead, the court demands that" the availability of infringing material is the primary customer for the service "(emphasis added). The plaintiffs have not clarified this standard:

The plaintiffs claim, at most, that access to infringing content that is generally available online is one of the many reasons that motivate some subscribers to sign up with an ISP. The plaintiff does not claim that the service that Bright House offers as a portal to the Internet or as a portal to this alleged smuggling content is unique. Furthermore, the plaintiffs do not claim that infringing content is “available” on the Bright House platform, such as: B. a storage vehicle (ie cloud storage) from which a potential infringer could try to directly or indirectly protect infringing content Helles Haus …

The plaintiffs claim that Bright House's Internet speed and efficiency are "attractive" to the service. This claim does not support a reasonable conclusion or plausibly claims that the primary draw for Bright House subscribers is access to infringing content that is generally available online. In fact, the plaintiffs do not even adequately claim that the efficiency that supposedly increases the ease with which an infringer can illegally access copyrighted content is itself the primary attraction of the Bright House service. Instead, the plaintiff advocates a "dog whistle theory," according to which Bright House advertises faster internet speeds in order to secretly seduce the potential infringer. It is not readily apparent or plausible to claim that an internet thief is no longer “attracted” to the efficiency of the internet service than the average law-abiding buyer of copyrighted content. Probably all users are looking for a faster and more reliable Internet service.

I love that analogy. Someone should write a paper about how often, sometimes successfully, copyright claimants rely on "dog whistle theories" that the accused's marketing has sent encrypted messages to violators. Isn't that why Apple's "Rip. Mix. Burn." Marketing raised eyebrows?

To get around this, the plaintiffs claim that violators are attracted to Bright House due to their lax termination policy for repetitions. The court also rejects this argument: "The test is whether users are attracted to Bright House by the availability of infringing content."

The plaintiff relied on the provisions of the DMCA Safe Harbor to define the scope of the agents. The court dismisses this and says it is a safe haven, not the basis of a plea (citing 512 (l) – a slightly quoted provision – and the DMCA Senate Report).

The court summarizes its conclusion:

According to the plaintiffs' theory, every aspect of Bright House's service that serves as a "draw" for a subset of subscribers who then participate in violations subjects Bright House to liability regardless of how insignificant or tangible the alleged draw for the violation is content wherever it can be found on the Internet. A reasonable value that can be attributed to this general solicitation to purchase Internet services from Bright House through a post hoc edict cannot provide a direct financial benefit to Bright House, primarily due to the use of available infringing content.

I believe that most of the facts listed would apply to other IAPs. If other courts agree to this approach, this decision will make it virtually impossible to hold IAPs accountable for user copyright infringement.

In general, this judgment and ALS Scan against Steadfast provide important counter-case law arguments that IAPs are held liable for any copyright infringement caused by subscribers. This decision cuts off in the event of a copyright infringement; Steadfast hacks for co-violations. Unfortunately, I cannot yet say whether this decision and steadfastness represent a turning point in the case law or whether they are ultimately seen as outliers in the endless search for IAPs as financial guarantors for the violations of their subscribers. Of course, the inevitable attraction in this case can shed some light on this question.

Case quote: UMG Recordings, Inc. v Bright House Networks LLC, 2020 WL 3957675 (M.D. Fla. July 8, 2020)

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