from the stepping-on-up dept
The RIAA’s war to force internet access providers to become copyright cops has continued to move forward. The RIAA planned this strategy out years ago, in the wake of losing the SOPA fight. Back in 2012 we wrote about an internal plan to try to convince courts that Section 512(i) of the DMCA actually mean that ISPs had to completely kick users off the internet based solely on accusations of infringement. The end goal here is, as always with the RIAA, to get everyone else to try to police the internet.
Part of the issue here is the incredibly inartful drafting of the DMCA, that has lead to multiple lawsuits over how conflicting aspects of the law should be interpreted. The results over the last decade or so of cases tend to have the courts simply deciding in favor of the more sympathetic party, rather than with any consistency as to the law itself. So, in the Viacom/YouTube case, the court required “actual knowledge” rather than the “general knowledge” that Viacom sought. Yet, in the IsoHunt case (unsympathetic defendant), the court found “red flag” knowledge to be enough. In the first case testing the RIAA’s theories on 512(i) and ISPs, against Cox, the RIAA won, but mainly due to Cox’s own bad behavior (specifically: internal employees mocked and did not follow the company’s own repeat infringer policy).
In the second case testing this theory, against Grande Communications, as was widely expected given an earlier magistrate judge’s opinion, the court has said that Grande does not qualify for the DMCA’s safe harbors, and therefore may be liable for infringement on its network. Once again, as with Cox, Grande’s own actions appeared to doom its argument for safe harbors. The company admitted that it didn’t actually have a repeat infringer policy. It had a stated one, but no effort was made to follow it internally — and since 512(i) requires a “reasonably implemented” policy, the lack of any plan to implement it means… no safe harbors. As we noted when the magistrate judge recommended this finding, this does not mean that Grande automatically loses the case. The RIAA still will need to prove contributory infringement on the part of Grande, which might not be that easy since it will have to show that Grande actively induced people to infringe (as per the Supreme Court’s standard in the Grokster case).
Either way, the RIAA is not waiting around and has moved on to an even bigger target: It is now suing Charter Communications on the same basic theory concerning 512(i). The record labels make some fairly bold claims about Charter in the case:
Charter is one of the largest Internet service providers (?ISPs?) in the country. It markets and sells high-speed Internet services to consumers nationwide. Through the provision of those services, Charter has knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers, causing great harm to Plaintiffs, their recording artists and songwriters, and others whose livelihoods depend upon the lawful acquisition of music. Charter?s contribution to its subscribers? infringement is both willful and extensive, and renders Charter equally liable. Indeed, for years, Charter deliberately refused to take reasonable measures to curb customers from using its Internet services to infringe on others? copyrights, including Plaintiffs? copyrights?even after Charter became aware of particular customers engaging in specific, repeated acts of infringement. Plaintiffs? representatives (as well as others) sent hundreds of thousands of statutory infringement notices to Charter, under penalty of perjury. Those notices advised Charter of its subscribers? blatant and systematic use of Charter?s Internet service to illegally download, copy, and distribute Plaintiffs? copyrighted music through BitTorrent and other online file-sharing services. Rather than working with Plaintiffs to curb this massive infringement, Charter did nothing, choosing to prioritize its own profits over its legal obligations.
You may notice a key problem here — as we’ve pointed out in other cases. The RIAA seems to think that mere accusations of infringement are proof of infringement, and thus should lead to people being disconnected from the internet. The RIAA also makes a real stretch of the requirement under the law for a “direct financial benefit” by claiming the following:
Charter has derived an obvious and direct financial benefit from its customers? infringement. The unlimited ability to download and distribute Plaintiffs? works through Charter?s service has served as a draw for Charter to attract, retain, and charge higher fees to subscribers. By failing to terminate the accounts of specific recidivist infringers known to Charter, Charter obtained a direct financial benefit from its subscribers? continuing infringing activity.
But that’s not how the “direct financial benefit” aspect works. The point of “financial benefit” in the DMCA is meant to apply to those services that get a financial benefit from the infringement itself and not just the general providing of services. Otherwise, that term is meaningless within the law — which is exactly how the RIAA would like it to be.
Incredibly, the key bit of “evidence” that the RIAA puts forth to prove that Charter’s behavior is so bad… is (and I kid you not), the fact that it advertises high speed internet. Really. In explaining why Colorado is the proper venue for the lawsuit, it focuses on the fact that Charter advertises high speed broadband there, and suggests that the only possible reason why anyone could want high speed internet access is infringement.
Moreover, Charter has engaged in substantial activities purposefully directed at Colorado from which Plaintiffs? claims arise, including providing Internet service to Colorado subscribers who used Charter?s network to directly and repeatedly infringe Plaintiffs? copyrights; continuing to provide Internet service to, and failing to suspend or terminate the accounts of, Colorado customers, even after receiving multiple notices of their infringing activity; advertising its high-speed Internet services in Colorado to serve as a draw for subscribers who sought faster download speeds to facilitate their direct and repeated infringements…
This ignores that there are tons of other reasons why people want high speed broadband including, you know, to access licensed services for content such as Netflix and Spotify. But, hey, the complaint chooses to ignore all that and insist it must be because of infringement.
Who knows how this particular lawsuit will go. As with Cox and Grande, much may depend on Charter’s internal policies and processes. However, so much of the complaint is utter bullshit. It again shows how the RIAA thinks the only reason people want to go online is to consume its content.
Of course, there’s a larger issue that may come up eventually. In 2017 in the Packingham case, the Supreme Court rejected a law that would kick people off the internet, saying being completely barred from the internet is unconstitutional. If the RIAA succeeds in forcing ISPs to kick people off the internet — without any judicial due process — then the Supreme Court may need to step in and point out that 512(i) itself is similarly unconstitutional. The RIAA’s greedy, unrealistic interpretation of the law could eventually backfire badly.
Filed Under: copyright, dmca, dmca 512, internet access, isps, repeat infringer policies
Companies: charter communications, riaa