Over the past two decades, online piracy has proven a massive challenge for the entertainment industries.
Some copyright holders have tried to go after individual pirates in court but, increasingly, third-party intermediaries are targeted as well.
There are several lawsuits pending in US Courts, where rightsholders accused Internet providers of not doing enough to stop piracy. One of the main allegations is that ISPs fail to terminate accounts of repeat infringers in ‘appropriate circumstances’, as is required under the DMCA.
These lawsuits were pioneered by music companies, which had some success on this front, including a $1 billion verdict against Cox. More recently, however, a group of filmmakers adopted a similar strategy. These companies have already sued several Internet providers, including Wow!.
Filmmakers sue WoW!
Wow! is being sued by a group of smaller movie companies, including Millennium Media and Voltage Pictures, which have built up an impressive anti-piracy track record in recent years. They’ve gone after individual pirates and targeted various pirate sites, including torrent index YTS.
The filmmakers now accuse the ISP of failing to terminate the accounts of subscribers who were repeatedly accused of sharing copyrighted material. As such, they hold Wow! liable for these pirating activities, which could lead to millions of dollars in damages.
Wow! clearly disagrees with these accusations. In a motion to dismiss submitted this week, the ISP refutes the claim that it’s directly, contributorily, or even vicariously liable for subscribers’ alleged copyright infringements.
Motion to Dismiss
According to Wow! the evidence provided by the movie companies’ anti-piracy partner Maverickeye fails to prove any direct infringements. An IP address is not sufficient to prove that subscribers downloaded any infringing material, the ISP claims, pointing to the ‘Cobbler’ case.
In addition, the secondary liability claims fail too, as the filmmakers can’t show that Wow! benefited financially from the pirating activity. Wow! charges flat fees for its internet service, which are the same whether subscribers pirate or not.
“[T]he Complaint lacks plausible allegations detailing how WOW profited directly from the alleged infringement, which renders any financial benefit from the alleged infringement attenuated or incidental, and not ‘direct’,” the motion to dismiss reads.
Wow! further argues that there’s no evidence showing that its Internet service was particularly appealing to pirates. Finally, the ISP notes that it simply couldn’t control or supervise any of the alleged infringements, which is also required to prove liability.
Wow! Disconnected Hundreds of Subscribers
These and other arguments will be reviewed by the court, which will ultimately decide whether this case can move forward. Many of the defense arguments are in line with what we have seen in previous cases, but there are key differences too.
For example, Wow! points out that that it’s not ignoring piracy. In recent years, the company has terminated accounts of hundreds of subscribers for which it received multiple copyright infringement notices.
“WOW has a robust program under which it notifies account holders of infringement allegations, suspends their internet access if the allegations continue, and then permanently terminates the account upon receipt of additional complaints.”
On top of that, the Internet provider also puts the defendants, its anti-piracy partners, and the evidence in a different light.
Trolls, a Victicious Person, and Strange Logs
Wow!’s motion to dismiss characterizes the filmmakers and their anti-piracy partner Maverickeye as copyright trolls. These entities have previously sued individual file-sharers in various courts to extract easy settlements.
“Plaintiffs and Maverickeye are part of a well-known web of copyright trolls. Until now, Plaintiffs’ modus operandi has been to file John Doe lawsuits in the hope of securing quick settlements and to dismiss them at the slightest resistance.”
The ISP also points to several lawsuits where Maverickeye was accused of a wide variety of wrongdoings, including the use of expert testimony from a fictitious person.
“Additionally, courts and litigants in these cases have persuasively accused Maverickeye of serious wrongdoing, such as submitting fraudulent ‘expert’ declarations from fictitious persons, violating state law by engaging in unlicensed surveillance, and even conspiring with copyright owners to offer copyrighted content over BitTorrent and then sue anyone who tries to download it.”
These allegations will have to be tested in court, but it’s clear that Wow! is willing to ask tough questions. This also applies to the ‘testimony’ from YTS owner Senthil Segaran, which the filmmakers used as evidence.
The site operator provided information from YTS’s logs and user database as part of an earlier settlement with the filmmakers. However, Wow! is not immediately convinced that this information is credible.
All in all, Wow! believes that the complaint should be dismissed in its entirety. Whatever the court decides, this case will be interesting to watch, as the stakes are high.
Besides millions of dollars in potential piracy damages, the filmmakers want Wow! to block various pirate sites and disconnect subscribers whose accounts are targeted by three unique infringement notices in three days.
A copy of Wow!’s motion to dismiss, filed at the US District Court for the District of Colorado, is available here (pdf)