For more than a decade, copyright holders have been sending ISPs takedown notices to alert them that their subscribers are sharing copyrighted material.
Under US law, providers have to terminate the accounts of repeat infringers “in appropriate circumstances” and increasingly they are being held to this standard.
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Earlier this year several major record labels, represented by the RIAA, filed a lawsuit in a Texas District Court, accusing ISP Grande Communications of failing to take action against its pirating subscribers.
The ISP is not happy with the claims and was quick to submit a motion to dismiss the lawsuit. One of the arguments is that the RIAA’s evidence is insufficient.
In its original motion, Grande doesn’t deny receiving millions of takedown notices from piracy tracking company Rightscorp. However, it believes that these notices are flawed as Rightscorp is incapable of monitoring actual copyright infringements.
The RIAA disagreed and pointed out that their evidence is sufficient. They stressed that Rightcorp is able to monitor actual downloads, as opposed to simply checking if a subscriber is offering certain infringing content.
In a response from Grande, late last week, the ISP argues that this isn’t good enough to build a case. While Rightcorp may be able to track the actual infringing downloads to which the RIAA labels hold the copyrights, there is no such evidence provided in the present case, the ISP notes.
“Importantly, Plaintiffs do not allege that Rightscorp has ever recorded an instance of a Grande subscriber actually distributing even one of Plaintiffs’ copyrighted works. Plaintiffs certainly have not alleged any concrete facts regarding such an act,” Grande’s legal team writes (pdf).
According to the ISP, the RIAA’s evidence merely shows that Rightscorp sent notices of alleged infringements on behalf of other copyright holders, who are not involved in the lawsuit.
“Instead, Plaintiffs generally allege that Rightscorp has sent notices regarding ‘various copyrighted works,’ encompassing all of the notices sent by Rightscorp on behalf of entities other than Plaintiffs.”
While the RIAA argues that this circumstantial evidence is sufficient, the ISP believes that there are grounds to have the entire case dismissed.
The record labels can’t hold Grande liable for secondary copyright infringement, without providing concrete evidence that their works were actively distributed by Grande subscribers, the company claims.
“Plaintiffs cannot allege direct infringement without alleging concrete facts which show that a Grande subscriber actually infringed one of Plaintiffs’ copyrights,” Grande’s lawyers note.
“For this reason, it is incredibly misleading for Plaintiffs to repeatedly refer to Grande having received ‘millions’ of notices of alleged infringement, as if those notices all pertained to Plaintiffs’ asserted copyrights.”
The “misleading” copyright infringement evidence argument is only one part of the ISPs defense. The company also notes that it has no control over what its subscribers do, nor do they control the BitTorrent clients that were allegedly used to download content.
If the court ruled otherwise, Grande and other ISPs would essentially be forced to become an “unpaid enforcement agent of the recording industry,” the company’s lawyers note.
The RIAA, however, sees things quite differently.
The music industry group believes that Grande failed to take proper action in response to repeat infringers and should pay damages to compensate the labels. This claim is very similar to the one BMG brought against Cox, where the latter was eventually ordered to pay $25 million.