Is Time Warner Cable about to be sued for copyright infringement?

By Eriq Gardner

EXCLUSIVE: The legal campaign that targets tens of thousands of  alleged movie pirates on BitTorrent is getting more interesting. Now one of the nation's largest ISPs could be held responsible for facilitating copyright infringement.

Yesterday, Thomas Dunlap at the U.S. Copyright Group filed his response to Time Warner Cable's motion to quash or modify thousands of subpoena requests. TWC had asked the court to require no more than 28 IP address lookup requests per month, citing the burden of having to comply with discovery requests that were "far out of line with other comparable copyright infringement cases."

In opposition, Dunlap disputes much of TWC's assertions, including the claim that the cost of compliance is "significant," pointing to $4.6 billion in revenue TWC received in the first quarter of this year and the fact that it pays its employees' salaries, regardless of whether or not it has to respond to plaintiff's subpoena.

But here's the money quote that caught our attention and might foreshadow some significant new litigation:

"TWC highlights the fact that it is not a party to this case, but it appears that TWC is utilizing that fact to garner public support for its position and possibly in an attempt to gain more subscribers who would value TWC's efforts to protect the privacy of demonstrated copyright infringers. To the extent TWC's tactics are just that — letting the public know that TWC is a good ISP for copyright infringers because TWC will fight any subpoenas relating to infringers' activities — TWC exposes itself to a claim for contributory copyright infringement." (boldface ours)

That sounds like a threat to us. Immediately after this quote, the plaintiffs refers to the U.S. Supreme Court's Grokster decision, which spelled out liability for contributory copyright infringement on behalf of ISPs.

Over the years, there's been a lot of debate over whether ISPs should do more to police their network for copyright infringement. But now there's the issue of whether service providers like TWC or Comcast should stand up against some of its customers in the interest of its business or stand aside and comply with all subpoena requests. A judge's marching orders is the next step here.

TWC declined the opportunity to comment.