A DISH Network copyright infringement lawsuit filed in February 2022, demanded $32.5m in damages from UK-based CDN company DataCamp.
The original complaint alleged that DataCamp failed to take appropriate action against 11 pirate IPTV services. DISH claimed these clients were repeat infringers after sending over 400 DMCA notices to DataCamp.
In many respects the lawsuit was not dissimilar to others that have targeted ISPs and various intermediaries in recent years. Allegations that DataCamp failed to act appropriately under a reasonable ‘repeat infringer’ policy, for example, is a hallmark of these potentially ruinous lawsuits.
The Specter of Losing Safe Harbor Protection
If a court determines that an intermediary cannot rely on safe harbor protections, the financial consequences of liability can prove catastrophic. As a result, pressure on DataCamp to settle would have been (or at least should have been) enormous. Instead, DataCamp came out swinging.
After settlement negotiations failed and pressure increased, DataCamp accused the plaintiffs of targeting smaller companies with copyright infringement claims, then aiming for cash settlements as an alternative to expensive lawsuits with unpredictable outcomes.
Given that opposing parties go to court to solve disputes, with settlement one of the more obvious options, in itself the DataCamp claim wasn’t especially unusual. However, the company went on to allege that it had been offered a public consent judgment, ostensibly worth tens of millions of dollars in the plaintiff’s favor, on the understanding that a private agreement meant that nothing would ever be paid.
The value, the company said, was in letting other potential lawsuit targets believe that, since DataCamp had paid, when DISH came knocking, they would have to pay too.
Parties Agree to Settle
In the wake of those extraordinary allegations and others besides, returning to the negotiating table can’t have been easy. The alternative, another one, two or more years of litigation, may have made the decision to carry on talking somewhat easier. In the end, it appears that agreeing to the terms of a settlement was more easily achieved than bridging the chasm of opinion on display in court over the last two years.
A statement issued today by anti-piracy group IBCAP, of which DISH is a member, and a separate statement from DataCamp, sets the stage for the same story and subsequent settlement to be told from two different perspectives.
“On February 2, 2024, IBCAP member DISH Network L.L.C. received a settlement payment of $3,000,000, resolving its lawsuit against Datacamp Limited, a U.K.-based company providing global content delivery network (CDN) services under the name CDN77 and dedicated servers and network services under the name Datapacket,” IBCAP’s statement reads.
“The settlement agreement follows substantial discovery and briefing on Datacamp’s motion to dismiss, which the court denied on July 14, 2023, rejecting Datacamp’s argument that the lawsuit should be dismissed because Datacamp could not be liable for infringement by its customers.”
DataCamp’s statement begins by noting the company’s “persistent compliance” with the requirements of the DMCA.
“Despite our persistent compliance with DMCA procedures, DISH Network made unfounded claims suggesting that we had not diligently policed alleged copyright infringements by some of our customers,” DataCamp says.
“We firmly believe the alleged facts in DISH Network’s complaints are false. Throughout the legal process we vehemently denied each claim and even filed Counterclaims against DISH Network due to their failure to comply with the DMCA process. Despite the difficulty of this decision, we believe that the decision to settle is in the best interest of our company and clients. We maintain our unwavering commitment to the highest ethical standards and DMCA compliance.”
Terms of the Agreement
Given that the terms of settlement agreements rarely appear in public, that they’re being made available here is unusual, to say the least. The details were provided by IBCAP and are reproduced here verbatim.
In addition to Datacamp’s payment of $3,000,000, which has already been received, the settlement agreement requires Datacamp to implement a takedown policy and a repeat infringer policy. These policies will promote the expeditious removal of infringing material and permanently shut down client accounts of repeat infringers. Datacamp further agreed to provide the identity and contact information of its clients that are repeat infringers or those that had their accounts permanently shut down for failure to remove allegedly infringing material. Datacamp agreed to future damages of up to $250,000 per month if it fails to fulfill removal and termination provisions of the settlement agreement.
The terms and conditions as detailed in the full agreement are extraordinary and to our knowledge, completely unprecedented. A small sample is provided below for reference, but essentially this reads like an uncompromising, tightened version of the DMCA, with severe penalties for non-compliance. (For ‘defendant’ read ‘DataCamp’)
– 3(a) Upon receiving a notice from DISH identifying infringing channels or works (whether airing on channels or offered as VOD), Defendant shall identify its client transmitting such channels or works and contact the client to demand that the client remove the subject channels or works and confirm such removal to Defendant by the date that is three (3) Business Days following Defendant’s receipt of DISH’s notice of infringement.
– 3(a)(i) If Defendant’s client confirms the removal within the deadline set forth in paragraph 3(a), Defendant shall inform DISH accordingly by email to the email address that sent the notice of infringement and asking DISH for confirmation.
If DISH provides Defendant notice that the client’s removal confirmation for the complained of content is false and the content has not been removed (in whole or in part), then within forty-eight (48) hours following receipt of such notice from DISH, Defendant shall both (1) permanently shut down and not restart the client’s servers/accounts and (2) provide DISH the client’s identity and contact information by email to the email address that sent the notice of infringement.
The section relating to financial penalties indicates that if DataCamp fails to handle takedowns in a way that constitutes a breach of the agreement, the company will have five days to put things right. At that point, the following financial penalties come into play:
-(2)(b) Defendant shall be liable to DISH for two thousand five hundred United States dollars ($2,500) per channel or VOD title, as identified in DISH’s notices with URLs or other identifying information, per day (or part of a day) that the breach continued (not to exceed two hundred fifty thousand United States dollars ($250,000) per calendar month).
Datacamp provided TorrentFreak with the following statement which addresses the agreement as a whole.
“The settlement agreement between Datacamp and DISH confirms our adherence to DMCA procedures. Additionally, it explicitly defines protocols for clients who persistently violate policies, display uncooperative behavior, and remain unresponsive over an extended period,” says DataCamp CFO, Veronika Siskova.
“Over the years we have readily assisted many content owners in protecting their intellectual property. The settlement terms closely align with standard DMCA procedures and reaffirm DataCamp’s dedication to DMCA compliance, providing a solid foundation for both parties to move forward positively.
“We remain devoted to our clients, and this resolution allows us to direct our resources and energy toward continuing to create exceptional products and services.”
Finally, it’s worth mentioning that DISH and DataCamp do seem to agree on the purpose of the original complaint, as IBCAP suggests.
“This lawsuit and resulting settlement agreement against Datacamp sends a direct message to yet another category of infringers — companies who support pirate services, such as CDNs and hosting companies — that their willingness to deliver infringing content over their networks will not be tolerated,” says Chris Kuelling, executive director of IBCAP.
“Datacamp’s payment of $3 million conveys a strong message that CDNs and hosting companies should not take the risk of permitting infringing content to stream across their networks. The takedown and repeat infringer policies that Datacamp has agreed to serve as examples of policies other CDNs and hosting companies should adopt to help minimize infringements on their networks and minimize their exposure to sizeable damage awards.”