Music Companies Don’t Want Copyright Profs to Be Heard in Piracy Case

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Earlier this year, several major music companies sued Charter Communications, one of the largest Internet providers in the US with 22 million subscribers.

Helped by the RIAA, Capitol Records, Warner Bros, Sony Music, and others accused Charter of deliberately turning a blind eye to its pirating subscribers.

Due to the wider implications the case may have, it’s followed closely by industry groups and legal experts. Two weeks ago, a group of 23 copyright law professors decided to step in, asking the court to hear their opinions which are outlined in a so-called amicus curiae brief.

The professors specifically object to a recent recommendation by a Colorado magistrate judge, which advised not to dismiss the vicarious liability claims for copyright infringement.

According to the judge, Charter’s failure to take other action in response to copyright infringement notices acted as a ‘draw’ to current and prospective subscribers, who would want to use the service in order to pirate.

This argument puts all ISPs at “unprecedented” risk, the professors warned in response. The same is true for Internet subscribers, who may face more privacy-invasive monitoring policies or lose their Internet access based on one-sided warnings.

While Charter is certainly pleased with the support, the music companies aren’t. A few days ago they asked the court not to accept the brief from the professors, suggesting that they may not be neutral and don’t bring anything new to the table.

The music companies first point out that the professors are not “disinterested” parties. Some of them may, directly or indirectly, have a vested interest in the outcome of the case.

“For example, one of the Proposed Amici is the Chairperson of the Board of the Electronic Frontier Foundation (‘EFF’), a nonprofit digital rights group that often advocates against the interests of copyright owners,” the music companies write.

“At a minimum, the Proposed Amici should be required to disclose any employment, consultancy, or other relationships with defendants and other parties that may have interests in the outcome of this action,” they add.

According to the rightsholders, Charter is capable enough to make the same arguments itself. In fact, many of the arguments made by the professors are similar to those the ISP already brought up, they say.

Finally, the music companies point out that several of the arguments raised by the copyright professors are not directly related to copyright law. Instead, they relate to the appropriate federal pleading standards, which isn’t their expertise.

“Copyright professors are not professors of civil procedure, they do not
study the intricacies of federal pleading standards, and they offer no specialized insight into the implications of Twombly, Iqbal, and the like.

“Accordingly, the Proposed Amici offer only a weak and redundant opinion on a subject about which the Court and the parties are well-versed,” the music companies add.

All in all, it’s clear that the music companies don’t want the copyright professors to have their say. It’s now up to the Colorado Federal Court to decide whether they can or not. After that, it must decide if the magistrate judge’s recommendations will be adopted.

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A copy of the music companies’ submission is available here (pdf).

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