Regular Internet providers are being put under increasing pressure for not doing enough to curb copyright infringement.
Last year several major record labels, represented by the RIAA, filed a lawsuit in a Texas District Court, accusing ISP Grande Communications of turning a blind eye on its pirating subscribers.
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“Despite their knowledge of repeat infringements, Defendants have permitted repeat infringers to use the Grande service to continue to infringe Plaintiffs’ copyrights without consequence,” the RIAA’s complaint read.
Grande disagreed with this assertion and filed a motion to dismiss the case. The ISP argued that it doesn’t encourage any of its customers to download copyrighted works, and that it has no control over the content subscribers access.
The Internet provider didn’t deny that it received millions of takedown notices through the piracy tracking company Rightscorp. However, it believed that these notices are flawed and not worthy of acting upon.
The case shows a lot of similarities with the legal battle between BMG and Cox Communications, in which the Fourth Circuit Court of Appeals issued an important verdict last week.
The appeals court overturned the $25 million piracy damages verdict against Cox due to an erroneous jury instruction but held that the ISP lost its safe harbor protection because it failed to implement a meaningful repeat infringer policy.
This week, the RIAA used the Fourth Circuit ruling as further evidence that Grande’s motion to dismiss should be denied.
The RIAA points out that both Cox and Grande used similar arguments in their defense, some of which were denied by the appeals court. The Fourth Circuit held, for example, that an ISP’s substantial non-infringing uses does not immunize it from liability for contributory copyright infringement.
In addition, the appeals court also clarified that if an ISP wilfully blinds itself to copyright infringements, that is sufficient to satisfy the knowledge requirement for contributory copyright infringement.
According to the RIAA’s filing at a Texas District Court this week, Grande has already admitted that it willingly ‘ignored’ takedown notices that were submitted on behalf of third-party copyright holders.
“Grande has already admitted that it received notices from Rightscorp and, to use Grande’s own phrase, did not ‘meaningfully investigate’ them,” the RIAA writes.
“Thus, even if this Court were to apply the Fourth Circuit’s ‘willful blindness’ standard, the level of knowledge that Grande has effectively admitted exceeds the level of knowledge that the Fourth Circuit held was ‘powerful evidence’ sufficient to establish liability for contributory infringement.”
As such, the motion to dismiss the case should be denied, the RIAA argues.
What’s not mentioned in the RIAA’s filing, however, is why Grande chose not to act upon these takedown notices. In its defense, the ISP previously explained that Rightcorp’s notices lacked specificity and were incapable of detecting actual infringements.
Grande argued that if they acted on these notices without additional proof, its subscribers could lose their Internet access even though they are using it for legal purposes. The ISP may, therefore, counter that it wasn’t willfully blind, as it saw no solid proof for the alleged infringements to begin with.
“To merely treat these allegations as true without investigation would be a disservice to Grande’s subscribers, who would run the risk of having their Internet service permanently terminated despite using Grande’s services for completely legitimate purposes,” Grande previously wrote.
This brings up a tricky issue. The Fourth Circuit made it clear last week that ISPs require a meaningful policy against repeat infringers in respond to takedown notices from copyright holders. But what are the requirements for a proper takedown notice? Do any and all notices count?
Grande clearly has no faith in the accuracy of Rightscorp’s technology but if their case goes in the same direction as Cox’s, that might not make much of a difference.
A copy of the RIAA’s summary of supplemental authority is available here (pdf).