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.
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.