Will The Music Industry Continue To Win Its Copyright Battle Against ISPs?

For the last twenty years, the music industry has been in a pitched battle to combat unauthorized downloading of music. Initially, the industry focused on filing lawsuits to shut down services that offered peer-to-peer or similar platforms, such as Napster, Aimster and Grokster. For a time, the industry started filing claims against individual infringers to dissuade others from engaging in similar conduct. Recently, the industry has shifted gears and has begun to focus on Internet Service Providers (ISPs), which provide Internet connectivity to their users.

The industry's opening salvo against ISPs was launched in 2014 when BMG sued Cox Communications, an ISP with over three million subscribers. BMG's allegations were relatively straightforward. BMG alleged that Cox's subscribers are engaged in rampant unauthorized copying of musical works using Cox's internet service, and Cox did not do enough to stop it. While the DMCA provides safe harbors if an ISP takes appropriate action against "repeat infringers," BMG alleged that Cox could not avail itself of this safe harbor based on its failure to police its subscribers.

In December 2015, the BMG v. Cox case went to the jury and resulted in a verdict in favor of BMG. The jury found that Cox's subscribers had used its service to infringe copyrighted works, and while the jury held that Cox was not liable under a theory of vicarious liability, it was liable under a theory of contributory infringement for the acts of its subscribers. The jury awarded $25 million in statutory damages to BMG.

With the playbook in hand, the music industry has sought to replicate BMG's success in the Cox case. Record labels have filed a number of additional cases against ISPs alleging they are secondarily liable for the direct copyright infringement of their subscribers under both contributory and vicarious liability theories.

In April 2017, a number of record labels filed an action against Grande Communications, a Texas based ISP, in the Western District of Texas. The case is currently scheduled for a jury trial in early 2020. In July 2018, a number of record labels (excluding BMG, which had already prevailed against Cox) filed a follow-on case against Cox in the Eastern District of Virginia based on their own copyrights. The case is currently on the rocket docket moving toward a jury trial in December 2019. In March 2019, a number of record labels filed an action in the District of Colorado against Charter...