RIAA Sues Verizon After ISP “Buried Head in Sand” Over Subscribers’ Piracy

At a time when many pirate sites seem increasingly elusive, oftentimes almost transient as domains, identities, and branding, come and go, static enforcement targets are in limited supply.

The same can’t be said for internet service providers and over the past few years, several have paid a very steep price. Not for engaging in piracy per se, but for not responding aggressively enough against subscribers mostly accused of repeatedly pirating movies and music.

Just before the weekend, dozens of record labels including UMG, Warner, and Sony, filed a massive copyright infringement lawsuit against Verizon at a New York federal court. In common with previous lawsuits that accused rivals of similar inaction, Verizon Communications Inc., Verizon Services Corp., and Cellco Partnership (dba Verizon Wireless), stand accused of assisting subscribers to download and share pirated music, by not doing enough to stop them.

Can You Hear Me Now?

The labels’ complaint introduces Verizon as one of the largest ISPs in the country, one that “knowingly provides its high-speed service to a massive community of online pirates.”

Knowledge of infringement, the labels say, was established at Verizon over a period of several years during which it received “hundreds of thousands” of copyright notices, referencing instances of infringement allegedly carried out by its subscribers. The complaint cites Verizon subscribers’ persistent use of BitTorrent networks to download and share pirated music, with Verizon allegedly failing to curtail their activity.

“While Verizon is famous for its ‘Can you hear me now?’ advertising campaign, it has intentionally chosen not to listen to complaints from copyright owners. Instead of taking action in response to those infringement notices as the law requires, Verizon ignored Plaintiffs’ notices and buried its head in the sand,” the labels write.

“Undeterred, infringing subscribers identified in Plaintiffs’ notices continued to use Verizon’s services to infringe Plaintiffs’ copyrights with impunity. Meanwhile, Verizon continued to provide its high-speed service to thousands of known repeat infringers so it could continue to collect millions of dollars from them.”

Through this lawsuit, which references piracy of songs recorded by artists including The Rolling Stones, Ariana Grande, Bob Dylan, Bruno Mars, Elvis Presley, Dua Lipa, Drake, and others, the labels suggest that Verizon will have no choice but to hear them now.

“Scope of Repeat Infringement on Verizon’s Network is Staggering”

The labels claim that since early 2020, their representatives have sent more than 340,000 infringement notices to Verizon. These notifications “clearly and unambiguously” advised the ISP of its subscribers’ “blatant and systematic use of Verizon’s Internet service” to download, copy, and share the plaintiffs’ copyrighted sound recordings via BitTorrent networks.

“The scope of repeat infringement on Verizon’s network is staggering. Thousands of Verizon subscribers were the subject of 20 or more notices from Plaintiffs, and more than 500 subscribers were the subject of 100 or more notices,” the complaint claims.

“One particularly egregious Verizon subscriber was single-handedly the subject of 4,450 infringement notices from Plaintiffs alone.”

Egregious infringers verizon infringers

The plaintiffs state that Verizon acknowledged receipt of the notices, sent by third party vendor OpSec Online LLC, but in terms of response, chose to ignore them, “willfully blinding itself to that information and prioritizing its own profits over its legal obligations.”

The complaint makes it clear that if Verizon wanted to avoid being held liable for subscribers’ violations, termination of repeat infringers’ accounts or similar meaningful action would’ve been appropriate steps to take. Instead, it’s alleged that Verizon “routinely thumbed its nose” in response to complaints, while continuing to provide service to subscribers known to be serial infringers.

“In reality, Verizon operated its service as an attractive tool and safe haven for infringement,” the plaintiffs add, noting that Verizon derived a direct financial benefit from subscribers’ repeated infringements, by failing to take action as part of an effective repeat infringer program.

Repeat Infringer Program is Ineffective

The plaintiffs note that Verizon’s published “Copyright Infringement/Repeat Infringer Policy” prohibits subscribers from using the ISP’s systems or servers in a manner that infringes third party intellectual property rights. The policy further states that under Section 512 of the DMCA, Verizon terminates repeat infringers in “appropriate circumstances.”

One of the problems, the labels claim, is that Verizon actively attempts to thwart copyright holders’ efforts to inform the ISP of infringement.

The complaint describes Verizon’s Anti-Piracy Cooperation Program as having “onerous conditions” that require participants to pay burdensome fees for automated processes such as IP address lookups and notice forwarding. Rightsholders are further required to waive their copyright claims, indemnify Verizon, while keeping the terms of the program confidential, the labels say.

Rightsholders who prefer not to utilize this program are required to send notices via email. The labels claim these notices aren’t reviewed, processed, forwarded to subscribers, or even tracked to ensure that repeat infringers are handled in line with Verizon policy.

Given that Verizon’s response to infringement notices falls short of what the labels consider to be the threshold for avoiding liability, they predict that the consequences of the ISP’s “support of and profit from infringement are obvious and stark.”

Claims For Contributory and Vicarious copyright Infringement

Attached to the complaint, Exhibit A contains a non-exhaustive list of the plaintiffs’ copyright works allegedly infringed by Verizon’s subscribers. The document is over 400 pages long, with each track listed representing potential liability for Verizon as a willful, intentional, and purposeful contributory infringer, the complaint notes.

This inevitably leads to claims based on maximum statutory damages of $150,000 per copyrighted work infringed on Count I (contributory infringement). The statutory maximum of $150,000 per infringed work is also applied to Count II (vicarious infringement), based on the labels’ claim that Verizon derived a direct financial benefit from the direct infringements of its subscribers.