High-Speed Internet and High-Stakes Piracy

VERIZON’S PROVISION OF ITS INTERNET SERVICE TO KNOWN, REPEAT INFRINGERS

71. Over the past 25 years, as P2P piracy became widespread, copyright owners have employed many means in an attempt to curtail the massive theft of their works, including sending copyright infringement notices to ISPs. Verizon has been keenly aware of those efforts, including many very public lawsuits against other ISPs concerning music piracy through BitTorrent, as well as the use of its own network for P2P piracy.

72. Copyright owners bear the burden—financially and logistically—of monitoring the Internet to identify infringement of their works and notifying ISPs when they identify such infringement on an ISP’s network. If ISPs want the benefit of a statutory safe harbor from monetary damages under Section 512(a) of the Digital Millennium Copyright Act, 17 U.S.C. § 512(a) (“DMCA” or “Section 512”), they must, among other things, adopt and reasonably implement a policy providing for termination, in appropriate circumstances, of subscribers who are repeat infringers. See 17 U.S.C. § 512(i).

73. Section 512 represents a “grand bargain” devised by Congress to encourage the development and proliferation of the Internet, while also respecting the intellectual property rights of copyright owners. Congress intended Section 512 to encourage “service providers and copyright owners to cooperate to detect and deal with copyright infringements” online.[9] In enacting the DMCA, Congress determined that this approach—which expressly contemplates termination of Internet service for repeat infringers—struck the appropriate balance between the need to foster the development of the Internet and promote electronic commerce, and the need to protect the intellectual property of copyright owners.

74. Upholding their end of the bargain that Congress struck with the DMCA, Plaintiffs have been sending notices of copyright infringement to Verizon for years, identifying specific instances of subscribers’ infringement through P2P activities. To ensure that Verizon received those notices so it could identify the infringing subscribers and take appropriate action against them, Plaintiffs sent their notices to both the email address that Verizon specifically provides for P2P notices ([email protected]) and to Verizon’s DMCA Designated Agent email address. Since February 2020, Plaintiffs alone have sent Verizon over 340,000 notices, detailing specific instances of specific Verizon subscribers using P2P protocols on the Verizon network to download and distribute Plaintiffs’ copyrighted works.

75. Plaintiffs’ trade association, the Recording Industry Association of America (“RIAA”) engaged a vendor, OpSec Online LLC (formerly known as MarkMonitor, Inc.) (“OpSec”), to detect infringements of Plaintiffs’ copyrighted works on Verizon’s network and send infringement notices to Verizon. OpSec is a global leader in brand and content protection, representing clients across a huge range of industries, as well as government agencies and law enforcement. Using proprietary technology, OpSec’s system connected with Verizon subscribers using P2P software and confirmed, in each instance: (1) that the subscriber was online; (2) that the subscriber was running a file sharing program using the BitTorrent protocol; (3) that the subscriber possessed a confirmed infringing file, identified by a unique “hash” value; and (4) that the subscriber was in fact distributing the confirmed infringing file, identified by a unique “hash” value, on Verizon’s network. OpSec also verified the file hashes to confirm that Plaintiffs’ copyrighted works were being distributed. Once OpSec had collected this evidence of infringement, OpSec generated and sent a notice of infringement to Verizon.

76. Each infringement notice OpSec sent to Verizon on Plaintiffs’ behalf identified the unique IP address assigned to each subscriber to Verizon’s network and the date and time the infringing activity was detected. Only Verizon, as the provider of the technology and system used to infringe, was in possession of the information required to match the IP address to a particular subscriber, and to contact that subscriber or take other appropriate action. While Plaintiffs undertook the burden and responsibility of monitoring Verizon’s network for infringement of Plaintiffs’ copyrighted works, only Verizon could take action against its subscribers for violating Verizon’s own Copyright Infringement/Repeat Infringer Policy and AUP by infringing Plaintiffs’ copyrights.

77. Plaintiffs’ infringement notices provided Verizon with knowledge of clear and unambiguous infringing activity by Verizon subscribers—that is, unauthorized downloading and distribution of Plaintiffs’ copyrighted works. Verizon’s subscribers had no legal basis or justification for downloading or distributing digital copies of Plaintiffs’ sound recordings to thousands or millions of strangers over the Internet.

78. Apart from attesting to the sheer volume of the infringing activity on its network, the infringement notices sent to Verizon identified specific subscribers who were flagrant and serial infringers. The infringement notices identified thousands of Verizon subscribers engaged in blatant and repeated infringement of Plaintiffs’ copyrighted works, including over 500 subscribers that were the subject of more than 100 infringement notices. The level of recidivism across repeat infringers on Verizon’s network during the period of infringement at issue here is staggering. To cite just a few specific examples:

• From March 2021 to at least August 2023, a Verizon subscriber with the IP address 100.37.98.18 was identified in 4,450 infringement notices, sent on at least 659 separate days.

• From August 2020 to at least December 2021, a Verizon subscriber with the IP address 68.134.246.125 was identified in 2,703 infringement notices, sent on at least 441 separate days.

• From March 2021 to at least August 2023, a Verizon subscriber with the IP address 173.70.227.147 was identified in 2,068 infringement notices, sent on at least 251 separate days.

These examples and many others amply illustrate that, rather than taking steps to meaningfully curb infringement, Verizon simply turned a blind eye to the massive infringement on its network.

79. During all pertinent times, Verizon had the full legal right, obligation, and technical ability to prevent or limit the infringements occurring on its network. Under Verizon’s AUP and its Copyright Infringement/Repeat Infringer Policy, which its subscribers agreed to as a condition of using Verizon’s Internet service, Verizon was empowered to exercise its right and ability to suspend or terminate a subscriber’s Internet access. Verizon could do so for a variety of reasons, including a subscriber’s copyright infringements. Verizon undoubtedly terminated numerous subscribers for non-payment of their monthly fees for Internet and other services.

80. Ignoring its policies, and receiving over 340,000 infringement notices from Plaintiffs, as well as millions of similar notices from other copyright owners, Verizon knowingly permitted specifically identified repeat infringers to continue to use its network to infringe. Rather than disconnect the Internet access of blatant repeat infringers or take other steps to curtail their infringement, Verizon knowingly continued to provide these subscribers with the Internet access that enabled them to continue to illegally download and/or distribute Plaintiffs’ copyrighted works unabated. Verizon’s provision of high-speed Internet service to known, repeat infringers materially contributed to these direct infringements.

81. Verizon’s motivation for refusing to terminate or suspend the accounts of blatant infringing subscribers is simple: Verizon valued corporate profits over its legal responsibilities. Verizon is paid monthly fees directly by repeat infringing subscribers. Verizon is paid more when subscribers need higher data speeds or plans, which repeat infringers often do given the amount of data required for using BitTorrent and other P2P protocols. Verizon did not want to lose subscriber revenue by terminating accounts of infringing subscribers. Retaining infringing subscribers provided a direct financial benefit to Verizon. Nor did Verizon want to risk the possibility that account terminations would make its service less attractive to other existing or prospective customers. Moreover, Verizon was simply disinterested in devoting sufficient resources to tracking repeat infringers, responding to infringement notices, and terminating accounts in appropriate circumstances. Considering only its pecuniary gain, Verizon ignored and turned a blind eye to flagrant, repeated violations by known specific subscribers using its service to infringe, thus facilitating and multiplying the harm to Plaintiffs.

82. Verizon’s failure to take meaningful action against its infringing subscribers drew subscribers engaging in Internet piracy to purchase Verizon’s services, so that those subscribers could infringe Plaintiffs’ (and others’) copyrights and avoid obtaining that copyrighted content through legitimate channels. Infringing subscribers were drawn to Verizon’s services both because of its lax policies concerning copyright infringement and faster internet speeds that facilitated the use of P2P protocols for those willing to pay more. Verizon fostered a safe haven for infringement in light of its lax policies and thus encouraged its subscribers to infringe. The specific infringing subscribers identified in Plaintiffs’ notices, including the particularly egregious infringers identified above, knew that Verizon would not terminate their accounts despite receiving multiple notices identifying them as infringers, and they remained Verizon subscribers so that they could continue illegally downloading copyrighted works.

83. In short, Verizon provided high-speed Internet service to repeat infringers known to Verizon to have repeatedly used its network to infringe Plaintiffs’ copyrights in blatant disregard of Verizon’s legal obligations and its own public-facing end-user policies. Once Verizon received Plaintiffs’ (and other rightsholders’) infringement notices regarding a subscriber with a particular IP address, Verizon knew that its network was being used for unlawful purposes, and it had a responsibility to act, both in accordance with federal law and its own policies. If Verizon had suspended or terminated the service of known repeat infringers identified by Plaintiffs, Verizon could have prevented further infringement. Indeed, Congress intended that the DMCA require ISPs to alert their subscribers that, for “those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others[,] . . . there is a realistic threat of losing that access.”[10] Verizon chose instead to contribute to, facilitate, and profit from the repeated infringements of its subscribers.

84. The consequences of Verizon’s support of and profit from infringement are obvious and stark. When Verizon’s subscribers use Verizon’s network to obtain infringing copies of Plaintiffs’ copyrighted works illegally, that activity undercuts the legitimate music market, depriving Plaintiffs and those recording artists and songwriters whose works they sell and license of the compensation to which they are entitled.

[9] H.R. Rep. 105-551 at 49; S. Rep. 105-190 at 20.

[10] S. Rep. 105-190 at 52; H.R. Rep. 105-551 at 61.