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Windstream Fighting Claims It's Liable For Subscriber Piracy

Windstream is urging a New York federal court to rule that ISPs are not liable for the file trading behavior of their broadband subscribers. Late last year a Virginia federal jury ruled that ISPs could be held liable for the file sharing behavior of customers on their network, contrary to the belief that ISPs are protected from liability via safe harbor provisions embedded in the DMCA. In fact, Cox Communications was ordered to pay $25 million for not doing enough about piracy on its network, despite being one of the more aggressive ISPs on this front over the years.

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While Cox is still appealing that ruling, it has obviously made many ISPs nervous, forcing them to file up their lawyers nationwide.

As such, RCN sued BMG Music earlier this year (BMG is spearheading copyright troll Rightscorp, which tries to make money by scaring file traders into giving them pre-settlement money to avoid trial). And Windstream is looking for a New York federal court to pre-emptively rule that it's protected by the DMCA.

“Similar to other ISPs, Windstream only provides Internet connectivity, making it a mere conduit for the transmission of Internet services,” Windstream's complaint states.

“As a pipeline to the Internet, Windstream does not monitor or otherwise control the manner in which its subscribers utilize their Windstream Internet connection and does not initiate, control, select or modify the material or content transmitted by Windstream subscribers over Windstream’s network," the complaint continues.

BMG, Rightscorp and friends have tried to claim that Windstream's knowledge and allowance of file trading over the network makes Windstream liable for secondary copyright infringement and statutory damages as high as $150,000 per protected work.

But "defendants have no direct evidence that any Windstream subscriber engaged in direct copyright infringement and Windstream, as a mere conduit for the transmission of Internet services, cannot be held liable for direct copyright infringement," the company says.

All eyes remain on these cases, and you can be fairly sure that larger ISPs with better lawyers and deeper pockets (AT&T, Comcast, Verizon) will join the fun should RCN and Windstream's efforts fail to bear fruit.

Most recommended from 36 comments



battleop
join:2005-09-28
00000

16 recommendations

battleop

Member

If Windstream loses this...

I can see these trolls will first attack smaller ISPs that can't put up a legal fight like the large ones. Then once they get judgements in hand they will attack the larger ones citing the earlier judgments.
Papageno
join:2011-01-26
Portland, OR

14 recommendations

Papageno

Member

Nice work if you can get it (if you're a copyright holder that is)...

Why on earth should ISPs be expected to provide unpaid policing services for copyright holders?
rradina
join:2000-08-08
Chesterfield, MO

12 recommendations

rradina

Member

Lunacy...

This is like making the post office responsible for delivering letters that scam people for money.

Anona9692
@teksavvy.com

9 recommendations

Anona9692

Anon

Still haven't proven IP = Person

IP address doesn't prove the identity of the user. Any IT guy could tell you this. All it proves is that a connect was made to this hardware at a specific time. Not who did it, just the equipment used. And since we see plenty of scams with IP out there, IPs are known to be spoofable, so they should not be used as evidence since this could be faked.

More and more it looks like judges are clueless and the trolls are making big payouts to someones PAC. If the crime cannot be proven to a specific person with zero doubt, that should be the end of it.

Instead of spending hug amounts of cash pushing this crap, why not use the funds to provide a more up to date way to get the content in the fashion customers want it?

SysOp
join:2001-04-18
Atlanta, GA

4 edits

8 recommendations

SysOp

Member

So the Virginia Federal Jury ruling

grants warrentless taps with full immunity to search and seizure with no judicial oversight, checks or balances?

I thought only the NSA had those powers.

The ISP could claim by doing so, they would violate the Constitution and/or other laws.

Anon0edcf
@teksavvy.com

4 recommendations

Anon0edcf

Anon

Same dumb argument, different tool

Gun opponents think manufacturers should bear some responsibility for gun injuries, but the gun owner is the only one that should be culpable.

When you speed on the highway, does your auto dealership get a ticket too? What about the state for providing the road you speed on?

Same applies to internet, ISP provides a connection, nothing more. They should not have to police it. That's why there are law enforcement departments run by state and federal governments that are required to prove a crime and then prosecute it, not lay out huge drag nets and claim everyone is guilty and try to extort them.
Skippy25
join:2000-09-13
Hazelwood, MO

3 recommendations

Skippy25

Member

ISPs are dumbpipes!

“Similar to other ISPs, Windstream only provides Internet connectivity, making it a mere conduit for the transmission of Internet services,” Windstream's complaint states.

Being they truly are a dumbpipe, but just wont use that name, they are not liable for anything on their network regardless of the effort they put into it or not to prevent it. The shopping center that a store leases from is not liable for the shoplifting going on in the store and the government is not liable for the robbery at a bank just because they built the get away road that the robbers used to rob them. Is the postal service liable if I defraud you? Is the baseball bat company liable if you beat you with it? What about the inventors of: the computer, TCP/IP, switches, routers, the wireless and wired physical plant, electricity? All of them have had a part in making it so people can pirate material.

The simple truth is that the content owners need to come up with a way to battle piracy. They need to make people want to buy their products or make it so that it is very hard for the individuals that want to pirate to do so and not be caught so they could be held liable directly.