Photo Credit: Kaitlyn Baker
A federal bankruptcy judge has rejected ISP Frontier Communications’ arguments in favor of tossing copyright infringement claims levied against it by the major labels.
Chief Bankruptcy Judge Martin Glenn just recently ruled on Frontier’s effort to dismiss components of the copyright action (as well as separate infringement allegations from a number of movie companies), and the development first entered the media spotlight in a TorrentFreak report.
For background, Frontier filed for Chapter 11 bankruptcy in 2020 and restructured in 2021, relisting shares on the public market (NASDAQ: FYBR) not long thereafter. June of 2021 then saw the majors sue Frontier – one of several ISPs facing infringement litigation from the industry – over its alleged failure to stop subscribers from repeatedly accessing protected works without authorization.
The district-court judge overseeing this and adjacent cases has for some time stayed the actions while the infringement claims proceed through the bankruptcy court. The music-company plaintiffs moved for discovery to take place in the latter venue, but requested also that the stay be lifted.
However, Judge Analisa Torres in an August of 2023 order rejected the push, writing that “in the interest of judicial efficiency and avoiding inconsistent results in parallel actions, lifting the stay in this action is not warranted at this time.”
Shifting the focus from these useful background details and to the bankruptcy court’s ruling on Dallas-headquartered Frontier’s motion for judgement on the pleadings, the ISP was seeking dismissal due to a 2023 Supreme Court ruling involving Twitter/X.
That opinion, which we covered in detail last year, has also factored into other infringement actions against ISPs, and particularly arguments that service providers generally aren’t liable for their users’ conduct. Additionally, Frontier introduced defenses pertaining to the rightsholders’ purported need to demonstrate secondary liability “under basic common law principles.”
Moreover, as the defendant sees it, the DMCA doesn’t “create any cause of action, prescribe any standard of liability, or impose an independent duty upon providers of internet service,” per the bankruptcy court’s summary.
Of course, the major-label plaintiffs pushed back against both arguments, maintaining in more words that Frontier is in fact liable for the alleged infringement because it didn’t cease providing services to the relevant subscribers after receiving related notices.
Expanding on the summarized points, Judge Glenn dedicated much of his over 40-page ruling to describing the ins and outs of secondary infringement as well as the previously mentioned Supreme Court decision, ultimately indicating that the latter doesn’t upend existing infringement precedent.
“Based on Frontier’s logic,” the judge wrote, “an ISP could only possibly face secondary liability if it had a clearly unlawful intent, manifested by substantial assistance—i.e., only under the inducement standard. This would render the DMCA, and especially the section 512(i) requirement of implementing a reasonable termination policy, meaningless.
“Thus, rather than silently rewriting this copyright doctrine, as Frontier’s conclusion implies, Twitter is wholly consistent with the established principles of contributory liability for copyright infringement described above,” the court proceeded in explaining the decision to reject the motion.
Regarding where the case goes from here, another filing shows that a scheduling conference concerning the labels’ claims is set to take place before Judge Glenn tomorrow afternoon. And in a different document yet, Frontier and its counsel appeared to disclose potential plans to take their arguments back to the aforementioned district court.
“If this Court finds for Frontier on the elements of the copyright infringement claims,” the relevant filing reads, “then it will never be necessary for the District Court to address Frontier’s DMCA defenses. If, on the other hand, the Court finds that claimants [the major labels and the film companies] have satisfied the elements of their copyright infringement claims, then the reference should be withdrawn so that the District Court may address Frontier’s DMCA defenses.”
