In March several major music companies sued Charter Communications, one of the largest Internet providers in the US with 22 million subscribers.
Helped by the RIAA, Capitol Records, Warner Bros, Sony Music, and others accused Charter of deliberately turning a blind eye to its pirating subscribers.
Among other things, they argued 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.
The labels sued the ISP for two types of secondary liability for copyright infringement; contributory infringement and vicarious liability. While Charter is confident that both claims will ultimately fail, it asked the Court to dismiss the latter claim before trial.
The music companies previously claimed that Charter is vicariously liable. To prove this, the rightsholders must show that allegedly-infringing material serves as a “draw” to subscribe to Charter’s Internet service. In addition, they must show that Charter can control the infringing activity.
According to the labels, this is the case. Among other things, they argued that Charter’s adverts for “high speed” downloads were seen as a draw. In addition, the ISP could control piracy on its network, by terminating repeat infringers.
In a response submitted this week, Charter counters these arguments.
With regard to the supposed “draw,” the ISP states that there has to be a causal connection between the financial benefit and the infringing activity. According to Charter, there is no plausible claim that suggests that subscribers specifically picked the company to carry out their piracy activities.
The fact that Charter advertises high-speed Internet is irrelevant in this case, as that’s what pretty much every ISP does. On top of that, high-speed Internet is also beneficial to all sorts of legal activity.
“It can safely be presumed that most, if not all, ISPs market the speed of their service, and there is of course nothing nefarious about doing so, as it is required for all manner of online activities. Plaintiffs can point to nothing to suggest that Charter’s ads are specifically targeted at would be infringers,” Charter writes.
“Moreover, Plaintiffs do not allege that the advertised speeds are meaningfully faster than Charter’s competitors or that those faster speeds somehow drew subscribers to Charter’s service (over others) to infringe. If Plaintiffs’ allegations were sufficient, every ISP would face exposure for merely advertising the speed of its internet service.”
In addition to refuting the “draw” claims, Charter also stresses that, even if it wanted to, it can’t control the infringing activities of its users.
The labels previously argued that the ISP does have control, as it can terminate the accounts of repeat infringers, but Charter stresses once again that this doesn’t stop piracy.
“The technology that allegedly facilitates the transfer of infringing material is BitTorrent and other P2P file sharing protocols. Charter cannot control BitTorrent or other P2P technology, nor do Plaintiffs allege as much. Terminating a user’s internet service does not preclude that user from continuing to use BitTorrent or other P2P websites.
“Rather than target the allegedly infringing P2P platforms themselves, Plaintiffs instead attempt to support a highly attenuated theory of liability,” Charter adds.
It is clear that both parties have a completely different view on the matter of piracy liability. It is now up to the Colorado District Court to decide which side makes the most sense.
A copy of Charter’s reply in support of its motion to dismiss plaintiffs claim for vicarious liability is available here (pdf).