Terminating Subscribers Doesn’t Stop Pirates, Charter Argues

Regular Internet providers are being put under increasing pressure for not doing enough to curb copyright infringement.

Music rights company BMG got the ball rolling a few years ago when it won its piracy liability lawsuit against Cox.

Following on the heels of this case, several major record labels including Capitol Records, Warner Bros, and Sony Music, hopped onto the bandwagon. Helped by the RIAA, they went after ISP Grande Communications and, more recently, Charter Communications.

The labels accuse Charter of deliberately turning a blind eye to its pirating subscribers. They argue that the ISP failed to terminate or otherwise take meaningful action against the accounts of repeat infringers, even though it was well aware of them.

A few days ago Charter responded to these allegations. The company denies that it plays an active role in any infringing activities and believes the labels’ arguments are flawed.

“This suit is the latest effort in the music industry’s campaign to hold Internet Service Providers (‘ISPs’) liable for copyright infringement, allegedly carried out by internet subscribers, for merely providing internet access,” Charter states. 

The labels sued the ISP for two types of secondary liability for copyright infringement; contributory infringement and vicarious liability. While Charter believes that both claims will fail, it has submitted a motion to dismiss only the latter.

In its motion Charter notes that, in order for a vicarious liability claim to succeed, the labels must show that the ISP profited directly from copyright infringements that it had both a right and ability to control. This is not the case, the ISP notes. 

“Plaintiffs fail to allege a plausible causal connection between any alleged
direct infringement and the subscription fees received by Charter,” the motion reads

“For example, Plaintiffs do not allege that infringers specifically chose Charter over other providers so they could infringe Plaintiffs’ copyrights, or that other ISPs were terminating subscribers, leading them to seek out Charter as a safe haven.”

In addition, the ISP points out that it doesn’t operate a file-sharing service, nor does it promote BitTorrent, or receive compensation for any file-sharing services. Instead, it merely charges a flat fee from its subscribers for which it provides Internet access.

The labels argued that the ISP offers a tiered pricing structure, charging higher fees for higher downloading speeds. However, Charter notes that this isn’t in any way catered to pirates. People who consume legal media also benefit from higher speeds, after all.

“Plaintiffs do not, and cannot, allege that those who illegally download music want faster speeds than those who do so legally, much less than those who download considerably larger movie or other files,” Charter writes.

“Such allegations would be implausible, as subscribers paying for higher tiers of service for lawful uses want to download content just as fast as those doing so illegally.”

Charter stresses that there is no evidence that it directly profits from copyright infringement. In addition, it doesn’t have a right and ability to control any infringements either, which negates another element of vicarious liability.

The labels argued that the ISP has control over the infringements, as it can terminate the Internet accounts of repeat infringers. However, Charter counters that this doesn’t prevent subscribers from continuing to pirate elsewhere.

“Charter cannot monitor and control its subscribers’ use of the internet, and its ability to terminate subscribers altogether does not prevent them from committing acts of infringement from other connections,” Charter notes.

Charter adds that it can’t monitor and control its subscribers’ use of the Internet, while adding that peer-to-peer file sharing protocols can be used for both infringing and non-infringing purposes.

All in all the ISP sees terminations as an overbroad and imprecise measure.

“Plaintiffs’ termination remedy suffers from ‘imprecision and overbreadth’ based on the inability to confirm allegations in a notice, the extremity of the measure, and the failure to halt infringing activity from another source,” Charter adds.

Based on these and other arguments Charter asks the court to dismiss the vicarious liability claim. That would still leave the contributory infringement claim intact, but the ISP is confident that it can deal with this at a later stage.

In addition to the suit against Charter, the record labels also sued its subsidiary Bright House for the same alleged offenses in a Florida court. Bright House responded to this lawsuit with a near identical motion to dismiss.

Both motions are now with the respective courts, which will at a later stage decide whether to dismiss the claims or not.

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A copy of Charter Communications’ motion to dismiss the claim for vicarious liability is available here (pdf).

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