US music industry has another go at holding ISPs accountable for copyright

The 2000s called, they want their filesharing litigation back. This was the first reaction of Music Ally when they read TorrentFreak’s report titled ‘RIAA Sues Verizon After ISP “Buried Head in Sand” Over Subscribers’ Piracy’. The RIAA is the Recording Industry Association of America, which represents the interests of record labels and was at the forefront of the initial battle against filesharing services such as Napster when this technology first came into popular use.

In the introduction to the court filing, the plaintiffs state “Verizon is one of the largest Internet Service Providers (“ISPs”) in the country and knowingly provides its high-speed service to a massive community of online pirates, who it knows repeatedly use that service to infringe Plaintiffs’ copyrights.”

Leaving aside technical details such as the use of VPNs to mask internet activity, the inference is that ISPs should police internet activity and are liable for any of it that is illegal. Verizon itself was a focus of this sort of thing at the dawn of the millennium, with the US Supreme Court eventually intervening to protect the privacy of individual internet users after the RIAA had sued to force Verizon to reveal the identity of filesharers.

“The Supreme Court has now finally shut a door that was otherwise left wide open to false accusations, negligent mistakes, as well as to identity thieves and stalkers, who could use the cursory subpoena process (without any judicial supervision) to obtain the name, address, and telephone number of any Internet user in the country - without the user even knowing about it,” said Sarah Deutsch, Verizon General Counsel, at the time.

"This decision reaffirms the fact that a legitimate process for legal recourse already exists - the John Doe lawsuit… This John Doe process entails the filing of a civil complaint, strict judicial oversight of any discovery of personal information, a court order to implement the discovery procedure, and notice to individual Internet subscribers with an opportunity to contest the allegations of copyright infringement prior to the revelation of their personal information.”

20 years later, the music industry seems to have decided that, since it’s too much of a hassle to go after individuals, it might as well hold Verizon liable instead. However, the RIAA seems to think it knows the identity of the offending subscribers, apparently assisted in this by a company called OpSec.

“Over the past few years alone, Plaintiffs sent Verizon hundreds of thousands of copyright infringement notices,” continues the court filing. “Those notices identify specific subscribers on Verizon’s network stealing Plaintiffs’ sound recordings through peer-to-peer (“P2P”) file-sharing networks that are notorious hotbeds for copyright infringement.”

Having come down firmly on the side of user privacy, the Supreme Court might want to have a closer look at how OpSec identified all these alleged baddies. Neither the RIAA nor Verizon have published press releases on the matter, but MBW got the following comment from RIAA Chief Legal Officer Ken Doroshow.

“The Digital Millennium Copyright Act was designed to encourage creators and platforms to work together to deal with online piracy. The plaintiffs did their part, identifying and informing Verizon of more than 340,000 instances of blatant copyright infringement by anonymous users of Verizon’s network.

“But Verizon chose to ignore this mass scale infringement and has failed its most basic obligations under the law. By flouting the law and rejecting the path of cooperation, Verizon has forfeited any claim to DMCA immunity and compelled music creators to turn to the courts to protect their rights and their work, including the 17,335 infringed recordings identified in the Complaint.”

This case could end up setting important precedents. While asking ISPs to police their users seems both impractical and undesirable, and privacy concerns must be respected, copyright holders should be able to protect their interests. There is no indication yet that any similar actions have been taken against other US ISPs.