June 8, 2021 – Another one! Some of the largest record companies in the U.S. have filed a copyright infringement lawsuit against Frontier Communications, one of the largest Internet service providers in the country.[1] The record companies claim that Frontier is secondarily liable for its broadband subscribers’ direct copyright infringement, and that “Frontier’s contribution to its subscribers’ infringement is both willful and material.”[2] The lawsuit was filed in U.S. District Court for the Southern District of New York.

The 15 record company Plaintiffs are UMG Recordings, Inc., Capitol Records, LLC, and ABKCO Music & Records, Inc.; Sony Music Entertainment, Arista Music, Arista Records LLC, Sony Music Entertainment US Latin, and Zomba Recording LLC; and Plaintiffs Atlantic Recording Corporation, Elektra Entertainment Group Inc., Lava Records LLC, Rhino Entertainment LLC, Warner Music Inc., Warner Music International Services Limited, and Warner Records Inc.

The Gist Of The Suit – Frontier Broadband Subscribers Made Multiple Illegal Downloads

The record company Plaintiffs allege Frontier is secondarily liable for its broadband subscribers’ direct infringement of 2,856 copyrighted works.[3] They say Frontier knew about this because they sent Frontier infringement notices alerting “Frontier of its subscribers’ blatant and systematic use of Frontier’s Internet service to illegally download, copy, and distribute copyrighted works through illicit BitTorrent sites and other online file-sharing services.”[4] These infringement notices, the Plaintiffs claim, show Frontier had “direct knowledge of particular subscribers engaging in specific, repeated acts of infringement.”[5]

Like similar past lawsuits filed against other large ISPs, the record companies claim Frontier ignored the DMCA infringement notices and did not terminate broadband subscribers identified as repeat infringers:

At all pertinent times, Frontier knew that its subscribers were using its high-speed network to illegally download and distribute Plaintiffs’ sound recordings on Frontier’s network. Frontier has received hundreds of thousands of copyright infringement notices from copyright owners, including Plaintiffs, but chose not to act on those notices and address the rampant infringement on its network.[6]

According to the complaint, the 2,856 infringements at issue in the lawsuit, which began on May 1, 2021, are purported to have occurred after Frontier received multiple notices of subscribers’ infringing activity, and are ongoing.

The Plaintiffs make two claims for relief: (1) contributory copyright infringement; and (2) vicarious copyright infringement.

Contributory Copyright Infringement

Here are the Plaintiffs’ general contributory copyright infringement arguments:

• Through the DMCA Notices and other means, Frontier had knowledge that its network was being used for copyright infringement on a massive scale; Frontier also knew which specific subscribers engaged in such repeated and flagrant infringement.

• Frontier facilitated, encouraged, and materially contributed to such infringement by continuing to provide its network and the facilities necessary for its subscribers to commit repeated infringements.

• Frontier had the means to withhold that assistance upon learning of specific infringing activity by specific users but failed to do so.

Vicarious Copyright Infringement

Here are the Plaintiffs’ general vicarious copyright infringement arguments:

• Frontier had the legal right and practical ability to supervise and control the infringing activities that occurred through the use of its network.

• Frontier derived an obvious and direct financial benefit from its subscribers’ infringement.

• Frontier marketed and promoted the high speeds of its network to attract those using peer-to-peer (“P2P”) networks to infringe (Frontier markets its high-speed service as enabling subscribers to download 10 songs in 3.5 seconds).

• The ability to use Frontier’s high-speed Internet facilities to illegally download Plaintiffs’ copyrighted works served to draw, maintain, and generate higher fees from paying subscribers to Frontier’s service.

• Among other financial benefits, by failing to terminate the accounts of specific repeat infringers known to Frontier, Frontier earned illicit revenue through user subscription fees that it would not have otherwise received from repeat infringers, as well as new subscribers drawn to Frontier’s services for the purpose of illegally downloading copyrighted works.

• The specific infringing subscribers identified in the DMCA Notices knew Frontier would not terminate their accounts despite Frontier’s receipt of multiple notices identifying them as infringers, and they remained Frontier subscribers to continue illegally downloading copyrighted works.

Record Companies Are Seeking Statutory Damages For Willful Copyright Infringement

As for relief, the Plaintiffs are seeking statutory damages for each violation of each copyrighted work. The maximum statutory damages for willful copyright infringement is $150,000.[7] This means if the record companies prevail on both claims for all 2,856 copyrighted works, Frontier would be liable for 856.8 million.

For some perspective here, in Sony v. Cox Communications, Cox was sued for both contributory and vicarious copyright infringement. The recording company Plaintiffs in that suit sought statutory damages in an amount of up to $150,000 with respect to each work infringed, as well as attorney fees and costs. The jury returned a verdict finding Cox vicariously and contributorily infringed 10,017 works, and Cox’s actions were willful. The amount of statutory damages awarded for each work contributorily or vicariously infringed was $99,830.29, making Cox liable for $1 billion in damages.

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[1] UMG Recordings, Inc. v. Frontier Communications Corp., Civ. Case No.21-cv-5050, Complaint (S.D. N.Y., filed June 8, 2021), https://storage.courtlistener.com/recap/gov.uscourts.nysd.561609/gov.uscourts.nysd.561609.1.0.pdf.

[2] Complaint at 4.

[3] Complaint at 9. Plaintiffs claim “the sound recordings listed on Exhibit A represent works infringed by Frontier’s subscribers after Plaintiffs identified those particular subscribers to Frontier in multiple DMCA Notices.” Complaint at 50.

[4] Complaint at 5.

[5] Complaint at 6.

[6] Complaint at 3.

[7] 17 U.S.C. § 504(c)(2).