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The Supreme Court Didn’t Change Secondary Copyright Liability Standards in the Taamneh Ruling—In re Frontier

This is another case asserting that Internet access providers are liable for their subscribers’ copyright infringements. The IAP, Frontier, argued that the Supreme Court’s ruling in Taamneh modified the venerable standards for secondary copyright infringement. The court doesn’t agree. The court summarizes its holding:

The Court declines to graft an analysis of secondary criminal liability for aiding and abetting terrorism onto the well-established branch of law governing secondary liability for copyright infringement.

Contributory Infringement

The court explains that the plaintiffs have alleged that “Frontier knowingly turned a blind eye to specific instances of infringement carried out over its network, but nevertheless continued to provide the means to carry out that infringement. This states a claim for contributory infringement.”

Furthermore,

The Court agrees with Claimants that the nexus in Twitter is a far cry from the allegations here, and does not foreclose theories of contributory liability based on attenuation. The Reina attack was not carried out on or through a social media platform, but rather in Istanbul by terrorists who had maintained accounts on the platforms; in contrast, the copyright infringement alleged here took place via Frontier’s network itself. Twitter is thus distinguishable and does not compel dismissal….

the mere provision a service or product with primarily lawful uses, with only some general knowledge that it can and will be used for nefarious ends, does not result in automatic imposition of liability…While the internet may facilitate all manner of illegal activity, no court has ever taken the drastic step of imposing liability on ISPs “simply” for providing internet

Why the different results for Frontier? The rightsowners sent unverified takedown notices, and Frontier could have done “something” about them.

Vicarious Infringement

With respect to vicarious copyright infringement, the court says it “certainly cannot not [sic] strike down an entirely alternate theory of liability, based on the completely different principles of agency, requiring elements that Twitter does not mention, let alone analyze. The thin, superficial thread of connection—i.e., that Twitter defendants’ platforms were online, and Frontier is an internet provider—does not alter this conclusion.”

Implications. The opinion’s summary of secondary copyright liability principles was well-written. I’m going to consider including it in my Internet Law casebook as the overview of secondary copyright law.

The court’s holding that Taamneh didn’t change copyright law seems fairly intuitive because secondary copyright infringement doctrines have dramatically deviated from their common law roots. Still, the Supreme Court did talk about IAP liability in Taamneh, so it makes sense an IAP would invoke the opinion and see if it helped them. Plus, holding IAPs liable for subscriber’s infringing activity remains terrible policy that imposes high costs on IAPs and leads to circumstances where subscribers lose Internet access even if it’s critical to their lives.

Case Citation: In re Frontier Communications Corp., 2024 WL 1299391 (S.D.N.Y. March 27, 2024)

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