July 8, 2020 – The U.S. District Court for the Middle District of Florida has dismissed a claim of vicarious liability made by a group of recording companies in their copyright infringement lawsuit filed against Bright House Networks, LLC.[1]

In March 2019, a group of record companies (UMG and others) filed a copyright infringement lawsuit against Internet service provider Bright House Networks, LLC in the U.S. District in Tampa, Florida. These Plaintiffs allege Bright House “knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers, causing great harm to Plaintiffs, their recording artists and songwriters.”[2]

The lawsuit is similar, if not identical, to other copyright infringement lawsuits filed by content owners against ISPs, all of which allege the ISPs failed to meet their safe harbor obligations under the Digital Millennium Copyright Act. Like those other lawsuits, UMG alleged Bright House refused to take action against subscribers who were alleged to have engaged in repeated copyright infringement using BitTorrent and other online peer-to-peer distribution networks. UMG’s complaint alleges Bright House is liable for contributory copyright infringement and vicarious copyright infringement.

Bright House Motion To Dismiss Vicarious Liability Claim

Bright House moved to dismiss UMG’s claim for vicarious liability, arguing the “Plaintiffs do not plausibly allege that BHN (i) profited directly from infringement that it (ii) had a right and ability to supervise and control.”[3]

Bright House first explained any financial benefit it received from any alleged infringement is incidental, not direct:

ISPs such as BHN enable subscribers to access the internet for a wide range of indisputably legitimate purposes, including for news, work, job searches, education, healthcare, emergencies, entertainment, social interactions, shopping, and to find infinite additional sources of information. Plaintiffs’ First Amended Complaint is bereft of any specific, plausible allegation that users were drawn to subscribe to BHN’s internet service to infringe Plaintiffs’ copyrights, as opposed to being drawn to BHN in order to efficiently access the internet—including in some cases to access music, which of course, users can do lawfully.

Second, Bright House explained that it “cannot plausibly supervise subscribers’ internet activity” because it “does not host the allegedly infringing content, and thus cannot view, access, or disable it.” Bright House further explained that subscriber termination under its DMCA policy does not give it the ability to supervise and halt alleged infringements:

Plaintiffs implausibly allege that BHN has the practical ability to supervise and halt the alleged infringements based solely on its policies prohibiting infringement and its ability to terminate internet access for violation of its policies. But termination of internet access is a drastic measure that cuts off all internet access for everyone using the internet through the same account, and it would not necessarily deter the actual alleged direct infringer (who may not be the subscriber) at all. Furthermore, under Plaintiffs’ model, such termination would occur before any legal findings that a subscriber has committed direct copyright infringement, regardless of the extent to which legitimate use occurs through that same account. Indeed, BHN provides internet service to schools, libraries, military bases, businesses, and families, where only one or a small fraction of affected users (e.g., those who would have their internet access terminated) might have used the internet to infringe copyrights. Termination of internet access is a blunt tool; it is imprecise and overbroad in its application, and would not prevent alleged infringers from continuing to infringe through alternate internet access.

Order Dismissing Vicarious Liability Claim – No Direct Financial Benefit

The Court dismissed the claim for vicarious liability after concluding that “Plaintiffs have failed to adequately allege that Bright House receives a direct financial benefit from its users' infringing activity.” Because the Court found the claim failed on the first prong, it did not “consider whether Plaintiffs have sufficiently alleged that Bright House has the right and ability to control the infringing conduct.”

The Court rejected the Plaintiff’s argument that the direct financial benefit requirement is met because some Bright House customers sign up for Internet access because the service gives them the ability to download infringing content. This argument has been used in a few previous DMCA cases, and is summed up this way – “to constitute a direct financial benefit, the ‘draw’ of infringement need not be the primary, or even a significant, draw—rather, it need only be ‘a’ draw.” The Court explained that “[t]his interpretation of the direct financial benefit requirement effectively reads the limiting term ‘direct’ out of the test, allowing the imposition of vicarious liability based on indirect, highly attenuated connections between infringing conduct of the patron and alleged financial benefits.” The Court further explained:

Instead, the Court concludes based on binding precedent that, even if liability is to be established under a “draw” theory, liability must, nonetheless, be based upon a direct financial benefit to the alleged vicarious infringer. Grokster, 545 U.S. at 931 n.9; BUC Int'l Corp., 489 F.3d at 1138 n.19. Thus, the plaintiff must be prepared to show and must, therefore, allege that the availability of infringing content “provide[s] the main customer ‘draw’ to the [service].” Adobe Sys. Inc. v. Canus Prods., Inc., 173 F. Supp. 2d 1044, 1051 (C.D. Cal. 2001) (emphasis added). Put differently, “the very success of the [defendant's] venture [must] depend[ ] on the [infringing] activity.” Id. Absent this limitation, the “draw” theory “would provide essentially for the limitless expansion of vicarious liability into spheres” far removed from the factual settings in which vicarious liability arose— employer-employee and independent-contractor relationships. Id. Moreover, requiring that the availability of infringing material be the primary customer draw to the service ensures that a defendant will be held vicariously liable only if it has “an obvious and direct financial interest in” the infringing conduct. Shapiro, Bernstein & Co., 316 F.2d at 307.

The Court then rejected Plaintiffs argument that some subscribers are drawn in part to Bright House by its failure to police infringing subscribers adequately. The Court explained that this is not the test: the test is whether users are drawn to Bright House by the availability of infringing content. The Court further explained that even if this were the test, the Plaintiffs complaint has not alleged that the main draw for Bright House subscribers is the company’s alleged failure to take meaningful action against copyright infringement.

To sum it up, the Court said the Plaintiffs’ expansive interpretation of the draw theory would eliminate the direct financial benefit requirement from claims of vicarious liability and would have far reaching consequences. The Plaintiffs’ theory, the Court stated, “would impose liability on every ISP, as the music at issue is available on the Internet generally, as is the BitTorrent protocol, and is not something exclusively available through Bright House’s services.” This, the Court explained, is precisely the type of limitless expansion of vicarious liability that the direct financial benefit requirement is designed to guard against.

*********

[1] UMG Recordings, Inc. v. Bright House Networks, LLC, Case No. 8:19-cv-710-MSS-TGW, Order, Dist. Court, MD Florida (July 8, 2020),

[2][2] UMG Recordings, Inc. v. Bright House Networks, LLC, Case No. 8:19-cv-710-MSS-TGW, Complaint And Jury Demand, Dist. Court, MD Florida (Mar. 22, 2019); UMG Recordings, Inc. v. Bright House Networks, LLC, Case No. 8:19-cv-710-MSS-TGW, First Amended Complaint And Jury Demand, Dist. Court, MD Florida (Jan. 7, 2020).

[3] UMG Recordings, Inc. v. Bright House Networks, LLC, Case No. 8:19-cv-710-MSS-TGW, Defendant Bright House Networks, LLC’s Motion To Dismiss Plaintiffs’ First Amended Complaint As To The Claim For Vicarious Liability, Dist. Court, MD Florida (Jan. 21, 2020).