ISP Optimum Questions ‘Evidence’ For Billion Dollar Piracy Lawsuit

Under U.S. copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”

This legal requirement remained largely unenforced for nearly two decades but a series of copyright infringement liability lawsuits, including a billion-dollar damages award against Cox, have shaken up the industry.

Music Companies Sue Optimum

While Internet terminations are more common today, that hasn’t stopped the lawsuits. Last December, a group of music rightsholders including BMG, UMG, and Capitol filed a complaint at the Eastern District of Texas, accusing Optimum’s parent company Altice USA of facilitating massive copyright infringement.

The pirating activity of subscribers shouldn’t be a surprise for the ISP, plaintiffs argued, as the company received numerous copyright infringement notices. This included those sent by the tracking company Rightscorp, which were paired with settlement demands.

“Rather than work with Plaintiffs or take other meaningful or effective steps to curb this massive infringement, Altice chose to permit infringement to run rampant, prioritizing its own profits over the Plaintiffs’ rights,” the complaint read.

To make the music companies whole, they demanded roughly a billion dollars in damages and an order requiring Optimum to prevent repeat copyright infringements on its network going forward.

Questioning the Evidence

Optimum’s parent company fiercely denies the allegations and argues that it’s protected by the DMCA’s safe harbor. To mount a proper defense, the ISP is conducting discovery for the upcoming trial, showing particular interest in Rightscorp’s piracy evidence.

Specifically, the ISP believes that the reliability and accuracy of Rightscorp’s detection system are central to its defense. Thus far, however, the piracy tracking company has failed to hand over all requested information.

To force the matter, Altice submitted a motion to compel Rightscorp to comply with the subpoenaed information. In its request, the company also scolds the music companies for trying to turn ISPs into copyright police, while characterizing Rightscorp’s copyright notices as ‘spam’.

“This case is the latest attempt by the music industry to engineer a copyright-liability regime that makes ISPs responsible for all infringement that takes place on the internet—and thereby turn ISPs into their de facto enforcers.

“Rightscorp intentionally sends out millions of notices a year, and includes threatening settlement demands therein, as it stands to gain a portion of each settlement received as a result of each notice. In reality, the volume of these notices is so high that it risks crippling Altice’s systems,” the motion adds.

More Information Needed

If the music companies want to hold Optimum liable for the copyright infringements of its subscribers, the ISP wants to review all underlying evidence in detail. Although Rightscorp has handed over some information, including notices and spreadsheets with metadata, the ISP seeks more.

For example, Rightscorp should be able to share information on its agreements with the music company plaintiffs, assessments of the accuracy of its piracy detection system, documents related to settlements with the ISP’s customers, and more.

“Given that the notices are at the center of the lawsuit between the Plaintiffs and Altice, Altice is seeking evidence concerning the accuracy and reliability of Rightscorp’s systems for detecting infringement and sending notices, as well as the data, evidence, records, or information on how Rightscorp verified the files before sending such notices,” the motion reads.

The complaint itself doesn’t include any of this information. Instead, the plaintiffs refer to Rightscorp, which takes a central role in this case as a result.

Rightscorp has yet to file a response to the motion, which is due mid-December. After that, the court will decide whether the piracy tracking company must hand over additional information, or not.

—

A copy of Optimum’s patent company Altice USA’s request for a motion to compel Rightscorp to comply with the subpoena is available here (pdf)