Charter Communications, one of the largest Internet providers in the US, stands accused of deliberately turning a blind eye to its pirating subscribers.
Several music companies including Capitol Records, Warner Bros. and Sony Music filed a lawsuit last year arguing that the ISP failed to terminate or otherwise take meaningful action against the accounts of repeat infringers.
The ISP objected and filed a motion at a Colorado federal court, asking it to dismiss the claim of vicarious copyright infringement. Charter argued that it doesn’t directly profit from pirating subscribers, nor does it have the ability to control them.
Previously, other Internet providers have been successful in getting vicarious infringement claims dropped, but Charter’s attempt failed. In an order released this week, US District Court Judge R. Brooke Jackson denied the motion to dismiss.
Judge Jackson follows an earlier recommendation from Magistrate Judge Michael Hegarty. Charter objected to this recommendation and was backed by an amicus curiae brief from 23 law professors. However, their arguments failed to convince the court.
Among other things, Charter argued that it didn’t profit more from pirating subscribers than from non-pirates. Judge Jackson doesn’t dispute this, but stresses that it’s enough to show that there’s a financial benefit.
“I find no case, and Charter has provided no case, suggesting that Charter must have benefited more from infringing subscribers than from non-infringing subscribers, or that the infringing subscribers paid more than non-infringing subscribers,” Judge Jackson writes.
The ISP also countered that the option that its services can be used for piracy wasn’t the primary “draw” for prospective subscribers. Again, the Judge waves this argument noting that, at this stage, it’s enough to show that piracy was a draw.
“Plaintiffs must only allege that the ability to download their infringing content served as a draw, not necessarily the only draw to subscribers. I find that plaintiffs’ allegations are sufficient to show that the ability to download infringing content served as a draw.”
In addition to the ‘profit’ and ‘draw’ elements, the music companies also argued that Charter has the ability to supervise and control the activity of pirating subscribers. This is another requirement to prove vicarious infringement.
The ISP disagreed and pointed out that it can’t identify and police pirating subscribers. Even if it would terminate users based on third-party allegations, these people could simply move to another provider and continue, it argued.
Again, Judge Jackson wasn’t convinced. He stresses that it’s irrelevant what users would do at other ISPs and believes that Charter could certainly take action against some infringing subscribers.
“Plaintiffs only seek to hold Charter liable for infringement that occurs through the use of Charter’s services, not all infringement that occurs on the internet,” Judge Jackson writes.
“Charter can certainly limit its subscribers’ ability to infringe by blocking their access to the internet through Charter. I find that this is sufficient to allege that Charter has the ability to control infringement,” he adds
All in all, the Judge sides with the earlier recommendation to deny Charter’s motion to dismiss. This means that the ISP will have to face the vicarious infringement charges. The claim for contributory copyright infringement also remains, as that wasn’t part of the motion to dismiss.
A few weeks ago Charter countersued the music companies for sending inaccurate takedown notices. This matter is still on the Judge’s desk and will be decided in due course.
Here is a copy of US District Court Judge R. Brooke Jackson’s order on Charter’s motion to dismiss the vicarious liability claim.