Court Shoots Down Record Label's Attempt To Expand The Definition Of 'Vicarious' Infringement

[steven36]

from the that's-not-how-it-works dept

 

 

While there has been plenty of attention paid to the BMG v. Cox case, in which Cox was found not to be protected by the DMCA's safe harbors in dealing with repeat infringers, it's increasingly looking like the ruling in that case (which eventually led to a "substantial" settlement) was fairly unique to Cox's situation. Specifically, while much was made of Cox's "13 strikes" repeat infringer policy, in the end the nature of the policy wasn't what sunk Cox: it was the fact that Cox didn't follow its own policy. In other cases, courts seem willing to grant much more latitude to the ISPs to make their own calls. We wrote about the 9th Circuit and its ruling in the Motherless case, which made it clear that a platform gets to set its own policy, and that policy need not be perfect.

 

Meanwhile, down in Texas, there's the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). As we noted back in April, while still in the district court, the Grande case wasn't going nearly as smoothly as the Cox case for those wishing to copyright troll. The magistrate judge was quite skeptical, and had tossed out entirely the claims of vicarious infringement (while somewhat skeptically allowing the claims of contributory infringement to move forward).

 

Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that's not enough to show that it was profiting from the infringement.

 

Universal Music tried to amend the complaint to show that it had "more evidence" that Grande and its management company, Patriot, were still vicariously liable -- but the magistrate judge says it's just trying to re-litigate what it lost last time. The recommendation makes fairly quick work of UMG's arguments:

Quote

The new evidence Plaintiffs rely on is: (1) Grande tracks its infringing customers; (2) these customers are “a la carte” internet customers; (3) Grande’s profit margins on a la carte customers are its highest of any business lines; and (4) Grande never terminated any user regardless of how many notices of infringement it received... Plaintiffs contend that these facts make a difference, and are enough to suggest that Grande’s failure to terminate infringers is a draw.... The Court disagrees. First, the original Complaint alleged essentially the same or similar facts. Second, the new allegations still fail to say anything about the motivations of Grande’s subscribers when they sign up with Grande. That is, Plaintiffs still fail to plead facts showing Grande gained or lost customers because of its failure to terminate infringers. Instead, the proposed amended complaint states that, “the evidence demonstrates that Plaintiffs’ Copyrighted Sound Recordings were a draw to Grande’s infringing customers, including customers Grande had identified as repeat infringers.” ... But as has been noted in prior orders, the means by which Plaintiffs contend the infringing subscribers infringed the Copyrighted Sound Recordings by use of the internet and the BitTorrent protocol, which one can access through any ISP. Again, the draw must be something more than this to state a vicarious infringement claim. The allegedly “new” facts are insufficient to overcome the deficiencies of the original Complaint.

This is important. For years, the legacy copyright players have continually tried to expand what third parties could be liable for when it came to infringement. It's always been a stretch to use both vicarious and contributory infringement claims in these ways, and it's good to see courts pushing back (though, in this case, the contributory infringement claims still have a chance...). The court directly pointing out that just because a company makes money from a client, that doesn't mean the money is from infringement is an important point that many among the copyright legacy world would like to ignore.

 

Source

[straycat19]

Seems like UMG didn't do a very good job of "judge shopping."  Though you don't hear it mentioned there is such a thing, it exists and is used by everyone, including law enforcement.  Judges have a predilection in certain types of cases that has become noticeable in their findings over the years.  So if you want a certain piece of evidence in, or want a warrant/subpoena issued, you know which judge you need to go to or get assigned to the case.  Companies do it all the time when filing lawsuits by shopping the possible jurisdictions they can file the suit in and the judges who will get to hear the case.

[steven36]

1 hour ago, straycat19 said:

Seems like UMG didn't do a very good job of "judge shopping." 

Some places if you are from out of town that right there is enough  for  them not to like you , also many courts are sick of seeing copyright trials that's why Rightscorp lost so many cases in the past and all most went bankrupt . This is  the reason they started going after the  small ISPs  instead of the infringer  they dont have a case against the large ISPs owned by Hollywood  because they agreed  to the  Riaa and Mpaa on 6 strikes  and followed it.  Cox had a  13 strikes policy and didn't follow  it, the law only require you have one and that you follow what it is . All the trials are  for things done back when the big ISPs owned by Hollywood were doing 6 strikes for Anti Piracy it nothing that happen since they all make up there own  terms,  so now there going back and suing the ISPs that made there own rules to start off with and trying prove they didn't follow them. So far they only been able to prove it against COX  there not going to win every case they never have.  

 

Rightscorp: Revenue From Piracy Settlements Down 48% in 2017

https://torrentfreak.com/rightscorp-revenue-from-piracy-settlements-down-48-in-2017-171125/

 

They lost so much,  there money was down  48%  in 2017  even if they win against a normal Joe,  they most likely will never see it ,or they will see very little of it because laws wont allow them to take very  much a week and if they just work somewhere that dont pay good,  that's not very much at all. This is why they went after the ISPs because if they win they will get paid its not about piracy  anymore it's just about money. If they hadn't won against COX they most likely would be no Rightscorp now.

 

That's why if you download in the USA its so important to use a VPN,  it dont just protect you from your ISP and trolls it protects your ISP from You and the trolls.