RIAA Realizes It Sued Charter Over A Bunch Of Songs It Doesn't Hold The Copyrights For

from the oops? dept

It's been a year since the RIAA sued Charter Communications, using the same strategy it had used against smaller ISPs Cox and Grande Communications -- that the DMCA actually requires internet access providers to completely kick users off upon the receipt of multiple (unproven) claims of copyright infringement. The RIAA has been plotting out this strategy for the better part of a decade.

For years, we've pointed out a number of problems with this, starting (most importantly) with the fact that accusations are not actual proof of infringement. And to kick people off of their sole access to the internet based solely on accusations would represent a real problem. As first noted by TorrentFreak, Charter has finally filed its answer, defenses, and counterclaims to the complaint. There's a lot of interesting stuff in there, but a key part: the RIAA and its labels and publishing partners quietly admitted that they were suing over songs they did not hold the rights to. That's kind of a big deal. Indeed, it reminds me of the revelation in the infamous Viacom/YouTube lawsuit that Viacom was suing over songs it had uploaded itself for marketing purposes.

From the counterclaims:

On January 15, 2020, Plaintiffs amended the list of works in suit, removing over 450 works from this case (the “Dropped Works”).

The Record Company Plaintiffs dropped 272 sound recordings and the Music Publisher Plaintiffs dropped 183 music compositions.

Upon information and belief, Plaintiffs dropped at least some of these works because they do not “own and/or control in whole or in part the copyrights and/or exclusive rights” the works.

Indeed, Plaintiffs dropped these works after they were ordered to produce further documentation relating to their purported ownership or ability to assert the works in suit in this case.

Despite later dropping these works the Record Company Plaintiffs, or their agent acting on their behalf, nevertheless sent notices to Charter in connection with the Dropped Works, claiming that they “have identified a user … reproducing or distributing an unauthorized copy of a copyrighted sound recording” and that the recipient of the notice “may be liable for infringing activity occurring” on Charter’s network. The Record Company Plaintiffs further claimed in their notices that the user’s “Internet account was used to illegally copy and/or distribute copyrighted music over the Internet” and that the notice contained “the details of the illegal file-sharing, including the time, date, and a sampling of the music shared.” The Record Company Plaintiffs’ notices “assert that the information in the notice is accurate” and that they “have a good faith belief that this activity is not authorized by the copyright owner, its agent, or the law.” The notices further stated that “[u]nder penalty of perjury,” “the RIAA is authorized to act on behalf of its member companies in manners involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.”

While the Music Publisher Plaintiffs did not send any notices for the music compositions in suit to Charter, the Music Publisher Plaintiffs’ infringement claims in this case purportedly rely on notices sent by the Record Company Plaintiffs to Charter, including those for the Dropped Works.

Upon information and belief, at least in connection with the Dropped Works, the Record Company Plaintiffs sent notices to Charter with inaccurate information, including but not limited to the misrepresentation that the RIAA was authorized on behalf of Plaintiffs to send a notice relating to these allegedly infringed works, that the Record Company Plaintiff on whose behalf the notice was sent owned or controlled the work, and that the actions alleged to have been taken by Charter’s subscribers constituted infringement of the Record Company Plaintiffs’ rights

The counterclaims go on to note that many of the works that have now been dropped due to the fact that the RIAA and its partners did not hold the copyright were the same songs that were previously used in the Cox Communications case:

Many of the same record companies and music publishers that are in this case pursued damages in Sony Music Entertainment et al. v. Cox Communications, Inc. et al, Case No. 1:18-cv-950 (LO/JFA) (E.D. Va.) (“Sony”) for certain of the Dropped Works, and the jury returned a verdict for certain of the Dropped Works in an amount of nearly $100,000 per work.

Yikes.

Now, some may claim that it doesn't really matter if the RIAA and its various partners held the copyright in these works, but it absolutely does for a whole variety of reasons. Most obviously, you can't sue over copyrights where you don't hold the copyright. But, it also shows the incredible sloppiness with which the RIAA and the labels and publishers go about determining "infringement." And that's why we keep pointing out that it very much matters whether you're kicking people off based solely on "accusations." When you're carpet bombing DMCA notices with an automated system, and no one competent seems to be overseeing the process, you get a ton of mistakes. And having people lose all internet access based on mistakes should be seen as a real problem.

The filing goes on to cite numerous examples of the RIAA and its partners mis-identifying infringement (including citing Techdirt), as well as the excellent and important study on DMCA takedown mistakes by Jennifer Urban, Joe Karaganis, and Brianna Schofield.

And, thus as part of the counterclaims, Charter is making a DMCA 512(f) claim of "knowingly sending materially inaccurate notices." As we've discussed for a while, 512(f) is mostly a dead letter, but it would be nice if someone actually got called on abusive takedown notices. The fact that the RIAA and its partners here, nearly a year after filing suit, suddenly dropped hundreds of songs after being asked to show proof that they actually hold the copyright... seems like as good a target as any.

The other parts of the counterclaims are also interesting. Charter makes the (important) point that it cannot and should not be expected to spy on every action by its users, and therefore it's silly to hold Charter liable for copyright infringement by its users. It would be nice if a court actually recognized that fact, but to date, it's been a struggle.

Filed Under: copyright, dmca, lawsuits, repeat infringer policy
Companies: charter, charter communications, riaa


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  1. identicon
    Anonymous Coward, 26 Mar 2020 @ 10:48am

    I am not a lawyer but ...
    this sounds like fraud.

    Isn't it a crime to bear false witness, certainly it is a crime to lie to the court.

    reply to this | link to this | view in thread ]

  2. icon
    PaulT (profile), 26 Mar 2020 @ 11:33am

    What mystifies me is how people think these labels are worth anything today in terms of a distribution deal. 20 years after Napster, and all they can do is make up fake "crimes" and whine about how people have abandoned them for Spotify, but still expect to get paid what they used to do when their cartel ran the protection racket. If they're that bad at their paperwork, imagine how accurate their royalty statements will be!

    It's good that these ISP are holding their ground and protecting their customers, but a chilling reminder of what will happen when people don't have choices other than RIAA/MPAA-wedded options.

    reply to this | link to this | view in thread ]

  3. identicon
    Ty Potter, 26 Mar 2020 @ 11:53am

    Typo in article?

    You used Verizon when referring to Viacom and their YouTube suit.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 26 Mar 2020 @ 11:59am

    Re:

    We already know how (in)accurate the royalty payments are, even structurally.

    reply to this | link to this | view in thread ]

  5. identicon
    MathFox, 26 Mar 2020 @ 12:04pm

    Well, the thing is that publishers have spent a lot on lobbying for favourable laws. And as various publications (for example Link and Link ) tell us, lobbying DC has a far higher ROI than actually producing things.

    reply to this | link to this | view in thread ]

  6. icon
    Igualmente69 (profile), 26 Mar 2020 @ 12:08pm

    "that the DMCA actually requires internet access providers to completely kick users off upon the receipt of multiple (unproven) claims of copyright infringement."
    If this is correct, then it is another part of the DMCA that is unconstitutional. The government mandating punishment without judicial determination of guilt blatantly violates the guarantee of due process.

    reply to this | link to this | view in thread ]

  7. icon
    ECA (profile), 26 Mar 2020 @ 12:13pm

    the fact that accusations are not actual proof of infringement.

    RIAA and its labels and publishing partners quietly admitted that they were suing over songs they did not hold the rights to.

    "Plaintiffs dropped at least some of these works because they do not “own and/or control in whole or in part the copyrights and/or exclusive rights” the works. "

    “have identified a user … reproducing or distributing an unauthorized copy of a copyrighted sound recording” and that the recipient of the notice “may be liable for infringing activity occurring”

    Its interesting that IF' I goto court because of a traffic Violation, the first thing they ask for is My License and insurance to PROVE, I am a legal driver.

    For all of the Listed comments from the representatives for the RIAA, I see a few to many, MAY HAVE, MIGHT HAVE, COULD HAVE...

    Iv wondered about legalese, that isnt Specific. Is it legal?
    And as to the Judges, Where is the proof, FIRST?

    And then people wonder about the BS on YT. SHOW proof that you own it or go suck rocks. No one has to show anything to make a complaint. YT dont even have to look up the person SENDING the complaint, as real or fake.

    I made a suggestion awhile back about making a company that Verifies Ownership of Music, movie, and other rights. Which would mean that ALL those contract copys would have to be HELD in 1 location and easy to verify. As well as a Contact person, if needed.
    There is no easy way to look up this info, which means its Copyrights via obscurity. Call up the RIAA and all they will say, is YEP, we got a CR.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 26 Mar 2020 @ 12:24pm

    Re:

    I made a suggestion awhile back about making a company that Verifies Ownership of Music, movie, and other rights.

    How do they do that, because at root all copyrights are simply claims that I created the work, and I am transferring the copyright to. Would be a first to claim system? How does the company deal with the volume of new videos published to YouTube, never mind all the videos, recordings, images and writing published on the Internet every hour.

    reply to this | link to this | view in thread ]

  9. icon
    ECA (profile), 26 Mar 2020 @ 12:26pm

    Re:

    yep, beginning of 2000-2010, 6 major Song writers and singers, SUED the RIAA.

    Also remember the OLD days and the OLD contracts. Everyone got Screwed. Even Actors.

    And then there is the idea of How much an alum costs, Without..
    Picture/graphic CR
    Recording in the CORPORATIONS recording studio
    All the formats, Vinyl, CD, DVD, TAPE, 16 digital formats
    Packaging, Shipping, handling, distribution
    trying to get Product to locations is WILL be bought, not out in nowhere, that no one wants it
    Then fighting USED music locations..
    then world distribution, and the laws in all those nations being different.(and why the RIAA/MPAA has spread controls around the world)

    Compared to..
    the fight to be the #1 location from 100's that sell music directly to anyone at any time, with no travel time, or handling costs..
    90% of all the music industry is now Mote. but they are earning as much or more profit then before.
    But before, they had TONS of write-offs..it was All owned by them and they got to write it all off to nothing.

    reply to this | link to this | view in thread ]

  10. icon
    DannyB (profile), 26 Mar 2020 @ 12:58pm

    Did they file any DMCA notices?

    If so there needs to also be some serious "under penalty of perjury" payback.

    If there can be a statutory $150,000.00 per instance penalty for copyright infringement, how about an equal statutory penalty for every defective DMCA notice? After all, once an infringement is identified, it seems someone should at least have a quick look at it to see if it even passes the laugh test before firing off a DMCA notice. If you're going to be given super duper DMCA takedown powers without due process, then there better be some super duper due diligence so that legitimate content and speech are not censored.

    reply to this | link to this | view in thread ]

  11. icon
    ECA (profile), 26 Mar 2020 @ 1:11pm

    Re: Re:

    its just a storage location to verify claims.
    Once YT or other get that info, can you bet they wont need to call back for that 1 instance?

    You need a 3rd party to verify. The CR office is for Creating the CR, but not transferring.
    Fake material would be fun to sort out, and not easy to do. As an artist might give Fair use to 1-2-3+ people and not tell the RIAA.
    We would have to figure all this out as we do it, as all the corps and gov have done in the past. IT cant be perfect at the beginning, as the corps WONT SHARE SPIT. And contract law is convoluted.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 26 Mar 2020 @ 1:17pm

    Re:

    Blame the public for demanding the long-irrelevant "status" of a book or record deal. They want their gatekeepers regardless of independent distribution channels, where literally anyone can publish.

    reply to this | link to this | view in thread ]

  13. identicon
    MathFox, 26 Mar 2020 @ 1:42pm

    Re: Did they file any DMCA notices?

    Even a $150 penalty for a false or defective DMCA notice would make a big difference: it would make spending a few dollars on checking the correctness of each notice a good investment. Sending out unchecked notices in bulk a recipe for bankruptcy.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 26 Mar 2020 @ 1:43pm

    Re: Re: Re:

    How many people are required just to keep up with the volume of new works published on YouTube, which is at least 500 hours of video a minute, and that is just one self publication site. Copyright could be made to work when 90% of human output was never submitted to a publisher, and when the publishers selected a small fraction of the works submitted to them.

    How do you make registration work at the volume of self publishing carried out on the Internet?

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 26 Mar 2020 @ 1:48pm

    RIAA is not a party to the suit, Mike.

    Inconvenient facts are still facts.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 26 Mar 2020 @ 1:59pm

    The songs will have to be dropped from the Cox case as well. I wonder how that will affect the appeal.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 26 Mar 2020 @ 2:17pm

    Re:

    Try reading the article. The very first sentence contains a link before the first comma that explains the RIAA and who it sued over a year ago. Reality still exists unphased by your insane take on it.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 26 Mar 2020 @ 3:47pm

    How is "kicking people of the internet" still a thing? In this day and age, internet access is necessary or will become necessary for banking, working, voting, government social services, the list is truly immense.

    Locking someone out of essentially, everything, for years or possibly forever because someone claimed you shared some music is preposterous.

    reply to this | link to this | view in thread ]

  19. icon
    Mike Masnick (profile), 26 Mar 2020 @ 4:22pm

    Re: Typo in article?

    Oh whoops. Not only that, but I did it twice. Fixed.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 26 Mar 2020 @ 4:36pm

    Re:

    They are sadists

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 26 Mar 2020 @ 4:59pm

    Re:

    Ah, but it is not the government dishing out the punishment. This is all a civil matter, the feds are actually above it all.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 26 Mar 2020 @ 5:21pm

    Why not i say

    “Some may claim it does not really matter”

    Let them keep thinking that until we have enough for a malicious persecution case.

    reply to this | link to this | view in thread ]

  23. identicon
    Bobvious, 26 Mar 2020 @ 6:32pm

    Re: Re: Typo in article?

    Yeh, don't worry. Verizon and Viacom will soon merge to become Verizacom after the usual theatrical hand-wringing and eventual enthusiastic rubber-stamping from the Dodge.

    reply to this | link to this | view in thread ]

  24. icon
    Samuel Abram (profile), 26 Mar 2020 @ 6:54pm

    Re: Re:

    Sadists actually operate based on consent (I mean, that's why there are safe words). What the RIAA does is the Sadistic equivalent of rape: no consent and a helluva lot of trauma.

    reply to this | link to this | view in thread ]

  25. icon
    PaulT (profile), 26 Mar 2020 @ 11:18pm

    Re:

    The RIAA itself wasn't a party, but all of the major companies that form part of it were named individually.

    This is the best defense you've got? This is weak, even for you.

    reply to this | link to this | view in thread ]

  26. icon
    PaulT (profile), 26 Mar 2020 @ 11:36pm

    Re:

    If there's a silver lining to the current crisis, it may be to prove once and for all that the internet is a vital utility to people.

    reply to this | link to this | view in thread ]

  27. icon
    Peter (profile), 27 Mar 2020 @ 12:36am

    Interesting reading - but does it help Charter?

    RIAA did not sue Charter over copyright infringement. It sued them for not punishing customer who had received warnings.

    That is why Cox lost their case: They had good arguments for acting the way they did - but they did not present them at the right time.

    Had Charter (and Cox) challenged the notice letters when they were sent out, or refused to punish users until the rightsholders presented evidence of copyright infringement, they'd have a good case. But ignoring the letters without giving reasons at the time puts them in a bad position now.

    For this case, at least: they might have a case themselves to go after RIAA. But that would be a different story.

    reply to this | link to this | view in thread ]

  28. icon
    ECA (profile), 27 Mar 2020 @ 2:54am

    Re: Re: Re: Re:

    How do you not?
    Its that of you goto court to decide in the next 6-24 months..
    YT dont care
    RIAA dont care if they are wrong.

    reply to this | link to this | view in thread ]

  29. identicon
    christenson, 27 Mar 2020 @ 10:25am

    Re: Re: Gatekeeping is necessary

    Look:
    If even you or I can write a trashy book and get it published and post fake reviews, how do I decide which book is worth reading?

    Gatekeeping in some form is a necessary evil. No one can wade through the entire deluge.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 27 Mar 2020 @ 6:08pm

    Re: Re: Re: Gatekeeping is necessary

    how do I decide which book is worth reading?

    There is no guarantee that any gate keeper will only publish books that you will like, they just mean that there fewer books from fewer authors to try out.

    To find authors that appeal to you, try free books from that author, and if they are to your taste, it is worth looking at authors that they like. Also, find forums for the genre of books that you like.

    reply to this | link to this | view in thread ]

  31. icon
    PaulT (profile), 28 Mar 2020 @ 12:29am

    Re: Re: Re: Gatekeeping is necessary

    "how do I decide which book is worth reading?"

    How did you decide before? If you're going to try telling me that you've never picked up bad books pre-internet, I'll say you've either lying or have only read 3 books in your life.

    "No one can wade through the entire deluge."

    Nobody's asking you to, and nobody could read every single book that was published under the old system either.

    The advice is the same as it's always been - pick trusted guides (be that author, publisher, reviewer, whatever) but don't be afraid to take the occasional gamble to expend your horizons. The are more and better tools out there not to help you choose than to depend on whatever the publisher thought would be most commerically viable.

    Just remember - there's a huge history of publishers getting it very wrong. The first Harry Potter book, Carrie, the first John Grisham novel, Dune, The Diary of Anne Frank and Catch 22 were all rejected by publishers 15 times or more, and there is long list of very good, very popular, even industry changing titles that were almost never published under the old system. What else are you missing because the author had no other way to be published under that system?

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 28 Mar 2020 @ 7:25am

    Re: Re: Re: Gatekeeping is necessary

    “Gate keeping is some form of necessary evil no one can wade through the entire deluge”?

    SO WE WILL CHOOSE WHAT YOU SEE FOR YOU
    -the riaa

    reply to this | link to this | view in thread ]

  33. identicon
    Marquis de Sade, 28 Mar 2020 @ 7:44pm

    Re: Re: Re:

    Not quite correct, you confuse BDSM practices (where to my understanding practioners rather use dom and sub), with the origin of the word and the usage like in
    sexual sadism disorder.
    https://en.m.wikipedia.org/wiki/Sexual_sadism_disorder

    Marquis de Sade (the name giver of sadism) didn't care much of consent and so do people who are diagnosed with ssd.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 29 Mar 2020 @ 2:27am

    Re: Re: Re: Re: Gatekeeping is necessary

    How did you decide before? If you're going to try telling me that you've never picked up bad books pre-internet, I'll say you've either lying or have only read 3 books in your life.

    Just a minor quibble: unless you know something I don't, it is possible they were not alive pre-internet.

    reply to this | link to this | view in thread ]

  35. identicon
    Anonymous Coward, 29 Mar 2020 @ 2:37am

    Re: Re:

    I would love for this to be correct.

    However it hinges on sanity dominating.

    Which sadly I have seen very little of.

    reply to this | link to this | view in thread ]

  36. icon
    PaulT (profile), 29 Mar 2020 @ 3:12am

    Re: Re: Re: Re: Re: Gatekeeping is necessary

    That is true, but then it makes even less sense for them to be wishing for a time when gatekeepers who got things so regularly wrong could dictate to them what they should read. A person who has grown up with the breadth of choice that the internet offers should be better versed in how to deal with that.

    reply to this | link to this | view in thread ]

  37. icon
    Scary Devil Monastery (profile), 30 Mar 2020 @ 2:54am

    Re:

    "Isn't it a crime to bear false witness, certainly it is a crime to lie to the court."

    Yep. Normally.

    However, thanks to the DMCA the claimant can say they were in good faith - even if they acted on nothing more substantive than a hunch gained by gazing into the pattern of their morning cereal.

    So it's going to be "oops, we dun goofed" and then they send of the next ten thousand takedown claims with just as good substantiation as the ones they just turned out not to have authority to send.

    reply to this | link to this | view in thread ]

  38. icon
    Scary Devil Monastery (profile), 30 Mar 2020 @ 2:59am

    Re:

    "If this is correct, then it is another part of the DMCA that is unconstitutional."

    Unfortunately not. The only thing the DMCA does is to have government backing off from interference in civil tort.

    Under normal circumstances if anyone made ten thousand false claims daily you'd be looking at one whopper of a fraud suit. The DMCA only ensures a certain set of private entities are explicitly allowed to make false claims without the threat of federal prosecution.

    reply to this | link to this | view in thread ]

  39. icon
    Scary Devil Monastery (profile), 30 Mar 2020 @ 3:04am

    Re:

    "RIAA is not a party to the suit, Mike."

    So if the entire crew of the red sox walks on to a grass field all you've got is some 20-odd baseball afficionados, not the "Red Sox" baseball team?

    That's...about on par with the rest of the knee-jerk defense certain copyright cultists always feel compelled to bring up...

    reply to this | link to this | view in thread ]

  40. icon
    Tanner Andrews (profile), 30 Mar 2020 @ 5:08am

    Re:

    Its interesting that IF' I goto court because of a traffic Violation, the first thing they ask for is My License and insurance to PROVE, I am a legal driver.

    Actualy, most of the time, no.

    I'll get your case out of the way first. If they are trying to do you for DWLSR, yeah, they ask. That is just a time saver. You show them your license, they give you a piece of paper to give to the clerk on the way out. Sometimes now they can do it on-line so you do not have to carry the piece of paper to the clerk.

    Otherwise, the first thing (other than settlement discussions and discovery) is that the cop has to try to make out his case. If you do not disagree that he has made out a case, then you can put on yours.

    This follows the general rule that the burden of proof is supposed to be on the claimant, which is to say, the entity seeking some sort of relief. If the cop does not make out a case, you need offer no evidence at all.

    reply to this | link to this | view in thread ]

  41. icon
    Bergman (profile), 31 Mar 2020 @ 9:03am

    Re:

    It's also fraud to go to a court, claim rights you don't have were infringed, collect $100,000 per IP you falsely claimed, and not forward those damages to the actual owner of the IP.

    reply to this | link to this | view in thread ]


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