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  1. A federal court in Florida has dismissed a complaint from ISP Bright House Networks, which accused several major record labels of targeting subscribers with false and deceptive piracy notices. The ISP, which wanted to add RIAA and its anti-piracy partner MarkMonitor to the suit as well, doesn't have a valid claim as it failed to act on the 'false' claims. Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.” In the past such drastic action was rare, but with the backing of legal pressure, ISPs are increasingly being held to this standard. Repeat Infringer Lawsuits Several major music industry companies including Artista Records, Sony Music Entertainment, Universal Music, and Warner Records, have filed lawsuits against some of the largest U.S. Internet providers. This also includes Bright House, which is owned by Charter. Through this lawsuit, the music companies hope to win hundreds of millions of dollars in damages. While that may sound high, last year a federal jury handed down a billion-dollar award in a lawsuit against Cox Communications. False DMCA Notices Counterclaim Bright House would like to avoid this fate at all costs. In a countersuit, filed in July, the ISP hit back accusing the record labels of sending inaccurate and deceptive takedown notices. This is in violation of the DMCA as well as the Florida Deceptive and Unfair Trade Practices Act, the company argued. A month later, the Internet provider asked the court for permission to add the RIAA and its anti-piracy partner MarkMonitor to the suit, as they are central to the wrongful conduct. The record labels were not happy with these accusations and asked the court to dismiss the claims. While it’s possible that some incorrect notices were sent, they argued that Bright House has no standing as the company failed to take any action based on their notices. No Disconnections, No Harm This defense points back to the basis of the “repeat infringer” issue. The labels sued the ISP because it didn’t disconnect persistent pirates. So if there were false notices, there was no real harm done. After hearing both sides, US District Court Judge Mary Scriven decided over the matter this week, clearly siding with the record labels. “Bright House alleges that Plaintiffs violated Section 512(f) of the DMCA by sending knowingly false infringement notices. This counterclaim fails as a matter of law because Bright House does not allege that it removed or disabled access to any allegedly infringing content in response to the notices.” Judge Scriven notes that this case is similar to the one Charter filed against several record labels. That case was dismissed as well a few weeks ago, as Charter didn’t show that it disconnected subscribers based on false DMCA notices. False Notices Claim Dismissed “Bright House’s counterclaim suffers from the same fatal flaw and is therefore due to be dismissed,” the District Court Judge writes. The ISP’s second claim, that the labels violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) fails as well, according to the court. A proper FDUTPA claim requires Bright House to argue that the false notices were sent as part of “trade or commerce,” which generally involves advertising or offering services, property, or something else of value. That’s not the case here, Judge Scriven notes. FDUTPA Claim Fails As Well “The FDUTPA claim is defective because the infringement notices do not constitute ‘advertising, soliciting, providing, offering, or distributing’ any ‘thing of value’ to Bright House, its subscribers, or any other party. “Plaintiffs sent the infringement notices as part of an alleged effort to enforce their legal rights in recordings and compositions they claimed to own,” Judge Scriven writes. This means that both counterclaims are dismissed. Bright House also put in a separate request to enforce the same claims against the RIAA and its anti-piracy partner RightCorp, but this is futile now that the underlying arguments don’t hold up. The case will now continue to trial without any counterclaims. Bright House will still have to defend itself against the repeat infringer claims and copyright infringement allegations. — A copy of US District Court Judge Mary Scriven’s order is available here (pdf) Source: TorrentFreak
  2. The legal battles between Internet providers and record labels are developing a familiar pattern. After the music companies accuse ISPs of failing to terminate accounts of pirates, the ISPs strike back by accusing the rightsholders of sending inaccurate and deceptive DMCA notices. A few days ago, Bright House Communications submitted its counterclaims. Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.” In the past such drastic action was rare, but with the backing of legal pressure, ISPs are increasingly being held to this standard. Several major music industry companies including Artista Records, Sony Music Entertainment, Universal Music, and Warner Records, have filed lawsuits against some of the largest U.S. Internet providers. This also includes Bright House, which is now owned by Charter. Through this lawsuit, the music companies hope to win hundreds of millions of dollars in damages. While that may sound high, last year a federal jury handed down a billion-dollar award in a lawsuit against Cox Communications. Bright House hopes to avoid this fate and a few days ago it struck back with some claims of its own. The ISP has submitted two counterclaims, suing the music companies for sending inaccurate DMCA takedown notices that targeted the music files they didn’t own. This is not the first time such an allegation has been made. The music-hosting platform Spinrilla has made similar allegations and Charter has also sued the music companies over similar claims earlier this year. In the Bright House case, the ‘inaccuracy’ issue was brought to the fore when the music companies submitted their amended complaint earlier this year. That suddenly removed hundreds of works from the case. “On February 15, 2020, Plaintiffs amended the list of works in suit, removing over 280 works from this case,” Bright House notes, adding that the music publishers used the RIAA to send notices for these files anyway. “Upon information and belief, the Record Company Plaintiffs did not own the Dropped Works when they sent notices for them,” the ISP adds. Aside from sending notices for titles they didn’t own or control, Bright House also highlights that anti-piracy notices, in general, are not always accurate. The ISP highlights several reports and studies to back this up this unreliability claim, including a TorrentFreak article. “Multiple news stories, including stories from the time period covered by Plaintiffs copyright infringement allegations, reported errors in notices sent by MarkMonitor to online service providers,” Bright House informs the court, citing several articles. The accusations ultimately lead to two separate claims. First, Bright House accuses the music companies of violating the DMCA by knowingly sending inaccurate piracy notices. “The Record Company Plaintiffs knew or should have known, or acted with reckless indifference in failing to acquire knowledge, that the notices contained inaccurate information before they were sent,” Bright House writes. “For example, the Record Company Plaintiffs knew or should have known, or acted with reckless indifference in failing to acquire knowledge, that they did not own or control certain of the works identified in notices sent to Bright House before they were sent.” In addition, the ISP also accuses the music companies of violating Florida’s Deceptive and Unfair Trade Practices Act. Specifically, Bright House accuses them of “knowingly or recklessly sending […]false, deceptive, and misleading copyright infringement notices” for works they didn’t own the rights to. “Plaintiffs’ acts and practices offend established public policy, and are immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers, and are misleading or likely to mislead consumers who were acting reasonably in the circumstances, to the consumers’ detriment.” These accusations are similar to the ones Charter lodged against the same companies in a different lawsuit. The ISP argues that these misleading and deceptive notices hurt the ISP as well as their customers. For example, Bright House incurred costs by processing and forwarding the piracy notices. In addition, the false notices created tension between the ISP and its customers, which also impacted the company’s goodwill and reputation. Bright House subscribers, for their part, were also impacted by the inaccurate notices. They were falsely led to believe that they had violated the law and were coerced to comply with baseless threats, the ISP says. These are strong accusations, to say the least. Both the record label and ISPs are now using the DMCA against each other. Which of these claims will hold up is for the court, or an eventual jury, to decide. A copy of Bright House’s answer to the amended complaint, including its counterclaims, is available here (pdf) Source
  3. Terminating Subscribers Doesn’t Stop Pirates, Charter Argues Charter Communications has responded to the piracy liability lawsuit filed by a group of prominent record labels. The ISP filed a motion at a Colorado federal court, asking it to dismiss the vicarious liability claims. Charter argues that it doesn't directly profit from copyright-infringing subscribers, nor does it have the ability to control them. 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. Source
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