Friday, December 21, 2018

US magistrate judge advises safe harbour be denied to ISP Grande Communications | UNLIMITED | CMU

Grande Communications

A magistrate judge in the US has advised that American internet service provider Grande Communications should be denied safe habour protection in its legal battle with the Recording Industry Association Of America.

The judge told the court hearing that legal battle that it should grant the RIAA a summary judgement in its favour on the crucial safe harbour question.

Grande was sued by the RIAA over its failure to deal with repeat copyright infringers among its customer base. Internet companies cannot usually be held liable for their customers’ infringement because of the safe harbour. However, to qualify for safe harbour protection, the internet company must operate a takedown system via which copyright owners can have infringing content removed and complain about repeat infringers.

The RIAA argues that Grande did not have sufficient anti-infringement procedures in place to qualify for safe harbour protection under America’s Digital Millennium Copyright Act. And therefore it should be held liable for its users’ infringement.

The trade body’s legal action followed BMG’s case against another American ISP, Cox Communications, which was likewise accused of having shoddy procedures for dealing with infringing customers. BMG’s court win against Cox was overturned on appeal, but on a technicality, with appeals judges pretty much confirming Cox was liable for its customers’ infringement. Cox subsequently settled with BMG.

Earlier this year the RIAA requested a summary judgement stating that Grande, like BMG, did not enjoy safe harbour protection. Such a judgement would mean that the court would then only have to decide what kind of copyright infringement Grande was liable for, and therefore what kind of damages it should pay the record industry.

Magistrate judge Andrew Austin has been considering that request and has now advised that the court grant the summary judgement.

According to Torrentfreak, he wrote in a report on the case that although Grande had a policy to deal with repeat infringers – as the DMCA demands – the ISP “affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer’s account regardless of how many notices of infringement that customer accumulated”.

The report then goes on: “A ‘reasonably implemented’ termination policy requires that the policy be enforced, and not just adopted. Because the evidence is undisputed that Grande never enforced its policy during the relevant time period, it is precluded from raising the DMCA safe harbour defence in this case”.

Indeed, the judge added, “it is hard to imagine a case in which it is more clear that the DMCA safe harbour is not available”.

None of which bodes well for Grande. And although a district judge must now make a final ruling on the RIAA’s request for summary judgement, if they follow the magistrate’s judge’s recommendation, that will seemingly confirm that the BMG v Cox judgement has set a definite precedent under American law as to the requirements on ISPs claiming safe harbour protection.


No comments: