September 22, 2023


Equality opinion

Another Rough Copyright Ruling for Internet Access Providers-Bodyguard v. RCN

Another Rough Copyright Ruling for Internet Access Providers-Bodyguard v. RCN

This is a different lawsuit from IAPs for subscribers’ BitTorrent activity. As I wrote formerly:

lawsuits against IAPs are problematic for numerous explanations, including the failure of 512(a), the danger of assuming that notices of claimed infringements (NOCIs) essentially mirror infringing behavior, and the mismatch between the wrongdoing of alleged copyright infringement and the solution of terminating World wide web accessibility

The courts feel unimpressed with these fears. The final result has been  a string of disconcerting rulings that put every single IAP in jeopardy.

In this case, the IAP RCN sought a motion to dismiss. Due to the procedural inferences in favor of the copyright house owners, the court fingers the plaintiffs a terribly lopsided win. Will the courtroom change its tune at the summary judgment stage? Or is this just how it is heading to go? Some lowlights from the belief:

Direct infringement

Plaintiffs adequately allege that Defendants’ subscribers, or individuals applying their accounts, utilize Defendants’ internet provider to duplicate and distribute the Is effective to which Plaintiffs maintain respectable copyrights…

The truth that Defendants reserve the suitable to terminate the accounts of infringing subscribers indicates, at least at the early pleading stage, that Defendants do, in simple fact, ponder accountability above their accounts regardless of the unique accessing the account

Reminder: the DMCA demands RCN to disclose and reasonably put into action its repeat infringer coverage, but the court looks to be keeping that from RCN? And where by is the volitional doctrine in all of this?

Contributory infringement

Plaintiffs have mentioned allegations ample to fulfill the information requirement at the pleading stage, based on the allegation that Maverickeye sent notices to Defendants relating to infringement of copyright safeguarded Operates at IP addresses assigned to Defendants from ARIN… [Eric’s note: reminder about the problems of assuming subscribers’ infringing activity based on takedown notices.]

Plaintiffs adequately allege carry out that encourages or assists infringement, precisely, that “Defendants ongoing to deliver assistance to their subscribers inspite of know-how that their subscribers had been utilizing the services to have interaction and facilitate huge piracy of Plaintiffs’ copyright protected Will work.” Consequently, Plaintiffs have pled that they knowledgeable Defendants of the infringing activity, and that Defendants ongoing to give service to these accounts with no more inquiry. [Eric’s note: so this court is currently embracing the remedy mismatch of canceling Internet access based on takedown notices]

Vicarious infringement

Pertaining to right and potential to handle:

Plaintiffs have adequately pled this element by alleging “Defendants check and/or control the content that their subscribers access or which internet websites they take a look at,” and “Defendants have the capacity to ascertain no matter whether their subscriber’s company is being employed for functioning file-sharing programs these kinds of as BitTorrent and whether or not the subscriber’s support is being utilised to distribute copies of copyright secured content”. In accordance to Defendants’ insurance policies, Defendants reserve the proper “to take away or block access to, possibly completely or briefly, any files which [Defendants] suspect[ ] or which a third party alleges are linked with a violation of the law[.]”

I considered the courts had stopped managing these kinds of contractual reservation of rights as evidence of control back in the 1990s, but I guess retro is again in fashion.

Regarding direct money interest, the courtroom credits these allegations:

Plaintiffs allege, “[t]he means of subscribers to use Defendants’ substantial-velocity services to infringe Plaintiffs’ Performs with no getting their companies terminated even with various notices remaining sent to Defendants acts as a highly effective draw for subscribers of Defendants’ support.” Plaintiffs more allege in this case that Defendants advertise their increased downloading and uploading speed, which is at an improved charge to “Download an Hd movie in a Snap” and to “Download a Tv exhibit, an album or shots in a Flash,” and that this draws shoppers who desire to make use of higher-velocity world wide web company to facilitate piracy on the BitTorrent network.

Internet marketing quick World-wide-web is evidence that the company is striving to financial gain from copyright infringement…? I guess RCN can much better handle its copyright liability exposure by advertising that it provides shitty connections.


The courtroom states it is achievable to contributorily violate 1202. Ugh. The court docket then collapses a great deal of the 1202 investigation into the 512 investigation, since hey! they have been equally in the DMCA. Ugh ugh ugh.


The 512(a) evaluation get this remedy in a footnote:

To the extent Defendants have asserted harmless harbor, the Courtroom finds Plaintiffs have plausibly alleged that Defendants do not qualify. According to the FAC, “[Defendants] ha[ve] adopted a policy that delivers for the termination in appropriate situations of subscribers and account holders who are repeat infringers,” but that Defendants have failed to moderately put into action it (see FAC ¶ 133 (giving an excerpt of Defendants’ consumer arrangement, advising subscribers that failure to obey applicable copyright legal guidelines may perhaps outcome in account suspension or termination) see id. ¶¶ 119-31, precisely ¶ 130 (“Defendants fully disregarded the [notice] letter and continued to offer services to even the subscribers engaged in prolific piracy in-depth in the letter.”) see also id. ¶¶ 143-51 (furnishing “examples of Defendants’ failure to reasonably apply the requisite policy)). Hence, Plaintiffs have adequately pled that Defendants are not qualified for safe harbor less than the DMCA to warrant dismissal at this stage of the proceedings.


Circumstance citation: Bodyguard Productions v. RCN Telecom Solutions, LLC, 2022 WL 6750322 (D.N.J. Oct. 11, 2022)

Bonus: Millennium Funding, Inc. v. Personal Online Access, Inc., 2022 WL 7560395 (D. Colo. Oct. 13, 2022)

The courtroom rejects direct copyright legal responsibility by a VPN support provider. The court thinks the 10th Circuit would undertake the volitional perform requirement. Consequently, “to state—and finally realize success on—a claim for immediate copyright infringement, there will have to be some causal nexus concerning the named defendant and the alleged immediate infringement.” Aereo doesn’t specify otherwise “the Aereo selection did not undertake or reject a volitional-perform requirement.”

With respect to volitional perform:

Plaintiffs’ allegations recommend that PIA advertises or represents that its people can “unblock” Netflix to circumvent the streaming service’s geographic limits, and encourages its people to do so. But Plaintiffs cite no authority demonstrating that, by encouraging or advertising its providers, PIA has correctly engaged in “volitional conduct” in the copyright context, and the Courtroom are not able to conclude that these allegations are sufficient…the 2nd Amended Criticism does not contain any specific factual allegations establishing certain volitional conduct on the component of PIA that is instantly joined to any precise infringement, and as a result, there are insufficient points to state a claim of immediate infringement towards PIA

Additional baffling discussion about 1202, although.