ISP Hopes to Defeat Record Labels’ Piracy Liability Claims at Trial

Three years ago, several of the world’s largest music companies including Warner Bros. and Sony Music sued Internet Provider Grande Communications.

 

The recording labels accused the ISP, which is owned by Astound, of not doing enough to stop pirating subscribers. Specifically, they alleged that the company failed to terminate repeat infringers.

 

Since the complaint was filed, both parties have gone back and forth in court with various arguments and accusations. The legal battle will soon go to trial and both parties filed preparatory documents in court this week.

 

As part of the jury selection process, the record labels and the ISP have submitted their statement of claims, which provide a clear and concise overview of the issues at stake.

Grande Denies Liability

Grande Communications believes that it shouldn’t be held liable for the alleged copyright infringements committed by its subscribers. The company portrays itself as a neutral service provider that never encouraged any type of piracy.

 

“Grande disputes the plaintiffs’ claim that Grande is liable for acts of copyright infringement allegedly committed by its subscribers. Grande asserts that it is merely an internet service provider and never induced or encouraged anyone to infringe the plaintiffs’ copyrights.”

 

The ISP calls out the record labels’ piracy monitoring service Rightscorp which, according to Grande, cannot accurately or reliably identify copyright infringements. In addition, the piracy tracking company allegedly destroyed or failed to preserve key evidence.

 

As a result, the copyright infringement notices that Rightcorp sent via email were insufficient to warrant any drastic measures, Grande suggests. Therefore, the company firmly believes that it shouldn’t be held liable.

 

“Rightscorp’s emails to Grande were flawed and unreliable, because of defects in Rightscorp’s system and because the emails lacked any supporting or verifiable evidence,” the ISP notes.

Record Labels Seek Millions

The statement of claim from the record labels argues the polar opposite. According to the music companies, it’s clear that the ISP is liable, alleging that Grande willingly profited from pirating subscribers.

 

With 1,422 sound recordings at stake, the amount of potential statutory damages that the jury can award exceeds $213 million.

 

At trial, the labels plan to show the jury that Grande was aware of this piracy problem since the early 2000s. Initially, it responded by terminating accounts of subscribers, but as time progressed the ISP changed course.

 

“[B]eginning in 2010, in an effort to increase profits, Grande eliminated its termination policy and chose instead to allow its subscribers to infringe copyrights freely with no consequences,” the labels write.

 

After this decision, the music companies sent over a million piracy notices and they allege that Grande failed to terminate even a single account in response.

 

“Yet despite knowing of, or deliberately avoiding learning about, specifically identified repeat infringements by its customers, Grande continued to provide those customers the internet service essential to their continuing their unlawful conduct,” they write.

 

The lack of terminations allegedly allowed the Internet provider to increase its profits while causing significant damage to the labels and their artists.

Do You Read TorrentFreak?

In addition to the statements of claim, both sides will also ask prospective jury members to answer a series of questions. These can help to detect biases and other issues that might make a person unfit to sit on the bench.

 

The labels’ questions are similar to the ones we’ve reported on the past. They want to know how familiar candidates are with file-sharing and whether they ever downloaded something from The Pirate Bay or other torrent sites.

 

There are also questions about the use of stream-ripping services and support for the EFF. In addition, TorrentFreak gets a mention as well, together with Ars Technica, another news site.

 

“Have you ever read or visited Ars Technica or TorrentFreak? If so, for what type of material?” the labels plan to ask potential jury members.

 

These questions could theoretically steer potential jurors in a certain direction. Even those who have never heard of TorrentFreak may be intrigued by the question and start reading it going forward. But that’s probably not the goal here.

 

The music companies are not the only ones asking questions of course. Grande Communications has also prepared a list, hoping to signal bias or other disqualifying factors.

 

The ISP asks, for example, if the candidates are musicians or have ever worked at a record label, and whether they believe it’s an ISP’s responsibility to monitor and police online piracy.

Moving Forward

After the jury members are selected the case will move to trial in a few weeks. Both parties expect to need a total of 10 days to present evidence and argue their case.

 

This isn’t the first case between record labels and an ISP that’s been scheduled to go to trial this year. Charter Communications and Bright House were in the same position but both companies signed a settlement agreement instead.

 

Meanwhile, a group of independent filmmakers recently filed new piracy liability lawsuits against Verizon, AT&T and Comcast so the U.S. federal courts are not done with these repeat infringer lawsuits just yet.

 

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Copies of the record labels’ statement of claim and voir dire questions are available here (1,2) and Grande’s versions can be found here (1,2)