Yesterday, Judge Wood dismissed an attempt by internet service provider (ISP) Windstream to secure a declaratory judgment that its status as an ISP meant that it lacked the necessary knowledge and ability to secondarily infringe copyrights under the Digital Millennium Copyright Act.  The defendant, music publisher BMG, argued that the court lacked jurisdiction to issue what would amount to an advisory opinion preventing any future infringement claims against ISPs.

Judge Wood agreed:

Windstream’s declaratory judgment complaint seeks an advisory opinion that apprises Windstream on if or how it should respond to Defendants’ notices and whether Windstream qualifies for DMCA’s safe harbor provisions. As the Honorable Richard Posner has written:

“It would be very nice to be able to ask federal judges for legal advice-if I do thus and so, will I be subject to being sued and if I am sued am I likely to lose and have to pay money or even clapped in jail? But that would be advisory jurisdiction, which, … [is] inconsistent with Article III’s limitation of federal jurisdiction to actual disputes . . . . ”  Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496, 498-99 (7th Cir. 2014).

Because Windstream seeks declarations untethered from any actual instances of copyright infringement or any mention of a specific copyrighted work, the complaint fails to identify an actual case or controversy and the declaratory judgment claims must be dismissed.

The defendant was represented by Steptoe’s IP and commercial litigation teams.