Movie producers want right to sue WOW customers it identifies as part of its safe harbour case with the internet firm

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By Chris Cooke | Published on Friday 26 November 2021

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The consortium of movie producers suing US internet service provider WOW in one of the more recent safe harbour disputes wants the net firm to identify thousands of its customers who are accused of copyright infringement, some of whom the producers might then choose to sue directly. Unsurprisingly, WOW doesn’t want to hand over that information, and certainly not if it makes it much easier for the film firms to take their customers to court.

The movie producers – many linked to Millennium Media – have recently been following the lead of music companies like BMG and the majors in targeting ISPs with legal action in relation to copyright infringement undertaken by those internet companies’ customers.

Usually ISPs would claim that they are protected from liability for their users’ infringement by the copyright safe harbour, but the music and movie industries argue that those net firms have not fulfilled all the obligations that must be met to enjoy safe harbour protection, in particular having and implementing an effective policy for dealing with repeat infringers. Both BMG and then the majors successfully pursed that line of argument against Cox Communications.

The case between the movie producers and WOW is continuing to go through the motions, with the ISP trying to get the whole thing dismissed, while both sides have been preparing for the discovery phase in the dispute. It’s the latter that could lead to the film firms also suing a stack of the ISP’s customers.

Copyright owners can usually only link infringing activity to IP addresses, not to the specific people accessing the internet via those IP addresses. In order to identify the actual users, an ISP would need to first file a ‘John Doe’ case – so a lawsuit targeting an unknown person – via which a court might order an ISP to reveal the identity of the person actually illegally accessing or sharing unlicensed content. Then that person can be properly sued.

However, the movie producers also want to identify WOW’s specific copyright infringing customers in order to prepare for its case against the internet firm, and is therefore asking the court to order the net firm to hand over that information.

That’s not an unknown request during the discovery phase of a case like this, though when the ISP Charter was ordered to share customer information as part of its safe harbour legal battle with the major record companies, said information came with a restriction: it could only be used to inform that specific case, and the majors couldn’t start filing lawsuits directly against any individual identified customer.

In this case the movie producers want a list of WOW’s allegedly copyright infringing customers without that limitation. They want any court order regarding the sharing of data to formally state: “For the avoidance of doubt, the plaintiffs are not limited from using subscriber information to pursue legal relief against certain subscribers”.

The producers add: “Since defendant refuses to terminate the accounts of its customer that are pirating plaintiffs’ works thousands of times in response to [copyright notices that have been submitted], plaintiffs must preserve their opportunity to take actions to protect their valuable copyrights from the piracy of defendant’s customers, including seeking injunctive relief against defendant’s customers”.

WOW argues that if the producers want to target its customers with litigation, they should go the John Doe lawsuit route. Though the producers note that the ISP has criticised that kind of action elsewhere in this dispute. They say: “Defendant simply cannot identify any cognisable harm from permitting plaintiff to pursue legal relief against some of its most egregious customers, besides loss of profits from its customer’s piracy, rather than requiring plaintiffs to file John Doe lawsuits – the same type of lawsuits defendant criticises in its motion”.

It remains to be seen what information WOW is forced to hand over as this case proceeds, what the producers are allowed to do with that information, and whether a stack of new lawsuits against WOW customers follow.

Although the producers add that another option is for WOW to just terminate the accounts of the alleged repeat infringers they have identified. They’d happily drop their demand to be able to use WOW’s customer information for future litigation if “defendant will stipulate to an injunction to do what it claims it is already doing – terminate the accounts of its customers for which it receives multiple notices of infringement”.



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