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)