For more than a decade copyright holders have been sending ISPs takedown notices to alert them that their subscribers are sharing copyrighted material.
Under US law, providers have to terminate the accounts of repeat infringers “in appropriate circumstances” and increasingly they are being held to this standard.
Earlier this year several major record labels, represented by the RIAA, filed a lawsuit in a Texas District Court, accusing ISP Grande Communications of failing to take action against its pirating subscribers.
“Despite their knowledge of repeat infringements, Defendants have permitted repeat infringers to use the Grande service to continue to infringe Plaintiffs’ copyrights without consequence,” the RIAA’s complaint read.
Grande and its management consulting firm Patriot, which was also sued, both disagree and have filed a motion to dismiss at the court this week. Grande argues that it doesn’t encourage any of its customers to download copyrighted works, and that it has no control over the content subscribers access.
The Internet provider doesn’t deny that it has received millions of takedown notices through the piracy tracking company Rightscorp. However, it believes that these notices are flawed as Rightscorp is incapable of monitoring actual copyright infringements.
“These notices are so numerous and so lacking in specificity, that it is infeasible for Grande to devote the time and resources required to meaningfully investigate them. Moreover, the system that Rightscorp employs to generate its notices is incapable of detecting actual infringement and, therefore, is incapable of generating notices that reflect real infringement,” Grande writes.
Grande says that if they acted on these notices without additional proof, its subscribers could lose their Internet access even though they are using it for legal purposes.
“To merely treat these allegations as true without investigation would be a disservice to Grande’s subscribers, who would run the risk of having their Internet service permanently terminated despite using Grande’s services for completely legitimate purposes.”
Even if the notices were able to prove actual infringement, they would still fail to identify the infringer, according to the ISP. The notices identify IP-addresses which may have been used by complete strangers, who connected to the network without permission.
The Internet provider admits that online copyright infringement is a real problem. But, they see themselves as a victim of this problem, not a perpetrator, as the record labels suggest.
“Grande does not profit or receive any benefit from subscribers that may engage in such infringing activity using its network. To the contrary, Grande suffers demonstrable losses as a direct result of purported copyright infringement conducted on its network.
“To hold Grande liable for copyright infringement simply because ‘something must be done’ to address this growing problem is to hold the wrong party accountable,” Grande adds.
In common with the previous case against Cox Communications, Rightscorp’s copyright infringement notices are once again at the center of a prominent lawsuit. According to Grande, Rightscorp’s system can’t prove that infringing content was actually downloaded by third parties, only that it was made available.
The Internet provider sees the lacking infringement notices as a linchpin that, if pulled, will take the entire case down.
It’s expected that, if the case moves forward, both parties will do all they can to show that the evidence is sufficient, or not. In the Cox lawsuit, this was the case, but that verdict is currently being appealed.
Grande Communication’s full motion to dismiss is avalaible here (pdf).