Filed in February 2022, a DISH Network copyright infringement lawsuit demanded $32.5m in damages from UK-based CDN company DataCamp.
The complaint alleged that DataCamp failed to take appropriate action against 11 pirate IPTV services flagged by DISH as repeat infringers, through the sending of more than 400 DMCA notices to DataCamp.
Similar lawsuits have become fairly common in recent years and when copyright holders prevail, damages awards can reach hundreds of millions of dollars. It’s therefore no surprise when defendants, including ISPs and hosting providers, find themselves under considerable pressure to settle.
Earlier this year the parties in the DISH matter said that a settlement was being discussed for a second time, just as DataCamp found itself under mounting pressure in an increasingly complex case.
Dramatic developments this week indicate that an amicable settlement is of no interest to DataCamp. The company’s answer and counterclaims contain allegations that, if proven true, could have serious implications for this case and raise questions about many others.
DISH Holds Exclusive Rights to TV Channels
Most if not all infringement lawsuits filed by DISH in recent years have centered on a number of TV channels for which it holds exclusive rights in the United States.
Typical DISH lawsuits filed against pirate IPTV services claim that, since these channels were made available in violation of DISH’s rights, operators are liable for damages under the Federal Communications Act or the Copyright Act.
More recently, DISH favored claims under the Copyright Act, alleging various types of copyright infringement, depending on the defendant and circumstances. DataCamp faces secondary copyright infringement claims, none of which hold water, the company now insists.
“DISH claims it entered into signed, written licensing agreements with the Networks granting DISH the exclusive right to distribute and publicly perform the Channels by means including satellite, over-the-top (OTT), internet protocol television (IPTV), and internet,” DataCamp’s filing informs the court.
“The Channels are not Registered Copyrighted Works with the U.S. Copyright Office. The United States Supreme Court has held that a plaintiff, such as DISH, cannot file suit for unregistered works. DISH has alleged copyright infringement for Unregistered Works in its Complaint.”
The ‘Phony Infringement Notice Scheme’
DataCamp alleges that around October 2017, DISH began sending infringement notices to DataCamp after “concocting a scheme” with anti-piracy partner NagraStar and its law firm. The CDN company says the aim was to “aggressively monetize DISH’s contractual rights under the guise of United States Copyright Law.”
DataCamp claims that the targets in this alleged scheme were smaller companies, including DataCamp, for the purposes of “extorting money” from them. DataCamp was to be used “as an example to bully the rest of the industry.”
According to DataCamp’s counterclaims, the plan was to use the DMCA to pressure smaller companies into compliance. This would enable them to avoid expensive and brand-tarnishing litigation, irrespective of whether the underlying claims were of substance, the CDN company states.
While DataCamp’s allegations are not yet supported by detailed evidence, the UK-based company takes the opportunity to recall some of its own experiences.
DISH TV Channels Are Not Copyrighted Works
“Having been repeatedly threatened with litigation/prosecution, DataCamp believed it had no choice but to comply with DISH’s demands by terminating its customers’ accounts, even when some customers claimed that no infringement occurred and despite DISH’s failure to provide proof of ownership/authority to sue, or proof of infringement, as required by the DMCA,” the company notes.
“In fact, DISH did not possess exclusive rights to any actual identified Copyrighted Works in question. Rather, DISH merely has limited contractual rights to ‘Channels,’ which are not Registered Copyright Works, and are not categorically protected under U.S. Copyright Law. DISH therefore is oddly and improperly trying to leverage its distribution agreements to secure exclusive rights not granted by the U.S. Copyright Office.”
DataCamp then arrives at what it believes to be the crux of the matter. The company alleges that DISH “illicitly and improperly” secures rights in certain TV programming that has not been registered with the Copyright Office. In this case, DISH says the plaintiffs’ sole purpose was to “bully” DataCamp into an agreement.
Dish institutes this action for the primary, if not sole, purpose of bullying DataCamp into agreement to a False Public Judgement for tens of millions of dollars which DISH would agree, in private, never to execute on so that DISH would lie to the industry and terrorize and intimidate other companies like DataCamp into giving into its demands for money, attorneys’ fees, and control of the Alleged Direct Infringers
DataCamp informs the court that it “rejected this fraudulent, false, unethical demand out of hand,” adding that DISH still isn’t taking no for answer and persists with its demands for what DataCamp says would be a “bizarre result.”
“DISH actually claims proudly that it ‘does this all the time’,” DataCamp continues.
“DISH’s demands for the creation of a fraudulent judgment would be a fraud on the Court and the Public which DataCamp will not be a party to.”
Counterclaims: Fraud, Deceptive Practices, Racketeering, Conspiracy
DataCamp alleges that DISH misrepresented its exclusive right to any copyright works, its authority to enforce, its possession of registrations for copyright works, and the lawfulness of more than 400 DMCA notices.
“DISH acted intentionally and/or with a reckless disregard for the truth because it (a) knew of the requirements of the DMCA and Copyright Law; (b) repeatedly engaged in this deceptive conduct with DataCamp as well as other service providers; (c) had no genuine concern for any specific Copyrighted Works at issue as evidenced by the demanded False Public Judgement,” DataCamp’s counterclaim reads.
DISH conduct shows a “pattern of racketeering” including fraud, mail fraud, and wire fraud, DataCamp continues, noting it was injured as a result of “these RICO violations.” In respect of the allegedly “phony infringement notices” sent to DataCamp, these are claimed to have had an ulterior motive of assisting DISH to enforce its contractual rights, rather than protect against copyright infringement.
DataCamp rounds off its counterclaims with allegations of civil conspiracy against DISH, Nagrastar, and its law firm, for operating a scheme that induced DataCamp to wrongfully comply with invalid notices, causing significant costs, expenses, and loss of customers. The company seeks damages and a trial by jury.
DataCamp’s answer, affirmative defenses, and counterclaims, are available here (pdf)
