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Major record companies sue US net firm Charter for a second time

By | Published on Friday 6 August 2021

Charter Communications

The major labels have sued US internet service provider Charter Communications accusing the net firm of liability for copyright infringement because of its failure to deal with repeat infringers among its customer base.

Now, if that sounds a little bit familiar, you’re possibly thinking about that time the major labels sued US internet service provider Charter Communications accusing the net firm of liability for copyright infringement because of its failure to deal with repeat infringers among its customer base.

But – just to be clear – what we are talking about today is entirely different. Because this time the major labels have sued US internet service provider Charter Communications accusing the net firm of liability for copyright infringement because of its failure to deal with repeat infringers among its customer base. I’m glad we cleared that up.

The record industry has been going after a number of ISPs in the US, of course, ever since BMG successfully sued Cox Communications. In that case, BMG argued that – although ISPs are in theory protected from liability when their customers use their networks to infringe copyright because of the safe harbour in the Digital Millennium Copyright Act – Cox failed to qualify for such protection.

That was mainly because the internet firm had only paid lip service to its own policies regarding repeat infringers among its userbase, policies the ISP was obliged to instigate and enforce in order to qualify for safe harbour protection.

As a result, Cox was held liable for all the BMG music that Cox customers had infringed on its networks. The majors then sued Cox too, presenting pretty much the same arguments and winning a neat billion dollars in damages. Unsurprisingly, the majors then also filed litigation against a number of other ISPs with allegedly shoddy systems for dealing with repeat infringers, and in 2019 that included Charter Communications.

That legal battle is ongoing, with Charter having failed to get the cased dismissed and then been unsuccessful when it tried to file a counterclaim against the labels over the way they go about issuing copyright notices to internet companies.

Earlier this year – as both sides in the dispute went through the discovery process – there was a side debate over whether online piracy was really a problem for the music industry anymore. Charter’s lawyers seemed to be arguing that – if their client is ultimately found liable for its users’ infringement – the fact that the recorded music business is doing just fine right now should be considered when any damages bill is considered.

Noting that the labels’ original lawsuit related to alleged infringement that took place in 2016 or earlier, Charter’s legal reps stated: “The snippet of time in which this case involves, because of the total length in the claim period, is a time when this P2P [file-sharing] issue was at its most pronounced. Today it’s no longer a problem. Today plaintiffs … are making a ton of money off of the internet streaming capabilities … Charter’s internet is actually giving them a vehicle by which they make a huge amount of money”.

But, needless to say, the labels do not concur with that argument. Piracy is still a problem, they say. And do you know what else is still a problem? ISPs not dealing with repeat infringers on their networks despite receiving a flood of copyright notices from music companies, that’s what.

Which brings us to the new lawsuit filed by the majors against Charter. The latest legal legal filing follows pretty much the same format as the previous one, but this lawsuit relates to infringement on the ISP’s networks since 2018.

Noting the original copyright notices the labels sent Charter all the way back in 2016, the new lawsuit states: “Plaintiffs believed – or at least hoped – that in response to these notices, Charter would alter its conduct and take meaningful steps to address ongoing infringement by its subscribers. Unfortunately, that did not happen”.

“Instead”, it goes on, “Charter persisted in contributing to and profiting from its subscribers’ infringement of plaintiffs’ copyrights through Charter’s network, even after receiving plaintiffs’ March and April 2016 notices of claims and, remarkably, even after plaintiffs filed the 2019 lawsuit”.

Referencing the precedents set in the aforementioned Cox cases, the legal filing adds: “Charter also understood in the first half of 2016 that another ISP, Cox Communications Inc, had been found liable for contributory copyright infringement and had been denied protection from liability under the safe harbour provision of the DMCA for failing to reasonably implement a repeat infringer termination policy. Nonetheless, the infringement on Charter’s network continued into and through the claim period”.

The labels then say that, since 2018 – and even since the filing of the 2019 lawsuit – they have “continued to monitor and detect infringement occurring through Charter’s network and sent more than 150,000 additional notices to Charter identifying specific Charter subscribers infringing plaintiffs’ copyrighted works”.

“Those notices advised Charter of its subscribers’ blatant and systematic use of Charter’s internet service to illegally download, copy, and distribute plaintiffs’ copyrighted music through BitTorrent and other online file-sharing services. Infringement of plaintiffs’ works in suit from the 2019 lawsuit continued during the claim period and infringement of additional copyrighted works also occurred”.

But, despite all that, “just as in the claim period in the 2019 lawsuit, Charter did nothing meaningful to address the infringement, continuing to prioritise its own profits over its legal obligations during the [new] claim period”.

As for why the labels have decided to go legal a second time against the same ISP while their previous litigation is still going through the motions, well, there are a couple of possible reasons.

Firstly, it could set a precedent that net firms sued over allegedly mediocre systems for dealing with infringement and infringers on their networks need to ramp up those systems even while any litigation is continuing to go through the motions.

Plus, of course, with US copyright cases plaintiffs can push for statutory damages of up to $150,000 per infringement, and with the second lawsuit comes another list of tracks that have been allegedly infringed, potentially helping to further boost any damages pay out.

We now await to see how Charter responds.