Last fall, a Texas federal jury found Grande Communications liable for willful contributory copyright infringement and ordered the ISP to pay $47 million in damages to a group of record labels.

District Court Judge David Ezra confirmed the judgment in January. This was a clear mistake, according to Grande, which hoped to have it overturned.

Do-Over Denied

In March, the Internet provider filed a renewed motion for judgment as a matter of law. Put simply, Grande wanted the Judge to overrule the jury . This is warranted if the evidence clearly weighs in favor of the requesting party but when a jury finds otherwise.

If that was not an option, the ISP asked the court for a new trial to allow the piracy liability issues to be raised again before a new jury.

U.S. District Court Judge David Ezra reviewed the motion but eventually denied both requests. According to the Judge, there was nothing wrong with the jury verdict and the court didn’t make any clear errors either.

“Neither Grande’s legal nor evidentiary arguments warrant judgment as a matter of law or a new trial,” Judge Ezra’s conclusion read.

Appeal Without Bond

With dozens of millions in damages on the line, Grande wasn’t planning to let the issue go. The ISP filed an appeal at the Fifth Circuit which is just getting started.

To save costs, the ISP requested to postpone the damages payment until the appeal concludes. Such a request is not unique, but Grande additionally asked the court to waive the bond it would have to post.

Courts can allow such postponements in extraordinary circumstances, when there’s no doubt that the losing party can easily pay their dues at a later stage, for example.

According to Grande, the company and its parent Astound have plenty of financial resources to enable payment when the time comes. The company further notes that posting a bond for the full $47 million judgment is a ‘waste of money’, as that would cost millions.

“Requiring Grande to post bond or other security when there is no dispute as to Grande’s financial security would be a ‘waste of money.’ A bond for the full amount of the current judgment would cost Grande approximately $4 million per year.

“Because Grande is capable and will continue to be capable of satisfying the judgment, it would serve no legitimate purpose to require Grande to incur this substantial annual expense, which would benefit the issuer of the bond and no one else.”

Music Companies Oppose

The request sounds straightforward, but the music companies have a different take on the matter. They don’t want the bond waived and point out that Grande’s current stance is contrary to the one it took at trial.

The ISP now highlights the financial backing of its parent, the Astound group , but previously asked for Astound’s financial strength to be excluded from the trial.

“The Court’s ruling excluding this evidence was based on the adamant representations of Grande’s counsel that Grande is an independent entity from Astound and that Astound’s finances were wholly irrelevant to this case,” the music companies note.

“Grande now argues that it should be permitted to ride Astound’s financial coattails and rely wholly on Astound’s present-day assets and revenues to avoid this automatic procedural rule and waive the bond requirement that applies to every defendant that loses at trial.”

The music companies ask the court to deny Grande’s request, arguing that the company fails to provide evidence to demonstrate its own financial position.

Grande’s comments about the “waste of money” are not sufficient either according to the plaintiffs. This argument is backed up by a statement by Astound’s Chief Financial Officer, but that is self-serving and lacks proper documentation, the music companies counter.

Post The $47m Bond, Or Else

After reviewing the arguments from both sides, Magistrate Judge Dustin Howell agreed with the music companies, denying Grande’s request to waive the bond.

In addition, Judge Howell grants the music companies cross-motion, which requires the Internet provider to post the required $47 million bond within two weeks. Failure to do so means that the company must pay the full damages amount right away.

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A copy of U.S. Magistrate Judge Dustin Howell’s order is available here ( pdf ). Grande’s original motion and the opposition from the music companies can be found here ( 1 , 2 )

From: TF , for the latest news on copyright battles, piracy and more.

Under U.S. law, online service providers need to respond to takedown notices and implement a meaningful policy to terminate the accounts of repeat infringers.

Many of the large social media platforms stick to these rules, but according to a lawsuit filed this week by several prominent music companies, Twitter is not among them.

‘Breeding Mass Copyright Infringement’

Universal Music, Sony Music, EMI and others filed a complaint at a federal court in Nashville, Tennessee, accusing Twitter’s parent company X Corp of “breeding” mass copyright infringement. The company allegedly fails to respond properly to takedown notices and lacks a proper termination policy.

As a result, Twitter is reportedly rife with music piracy. This activity generates many millions of views which are monetized by the social media platform, while rightsholders are not compensated.

“Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law,” the complaint reads.

“While numerous Twitter competitors recognize the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement that harms music creators.”

The music companies say that while many online platforms have agreed to licensing deals, Twitter has shown little interest in compensating musicians. This hasn’t changed since Elon Musk took over. Instead, the attitude towards rightsholders seems to have worsened.

The lawsuit specifically mentions a tweet from Musk which described the Digital Millennium Copyright Act (DMCA) as a “plague on humanity.”

“This statement and others like it exert pressure on Twitter employees, including those in its trust and safety team, on issues relating to copyright and infringement,” the music companies note.

The same DMCA provides the ammunition for this multi-million dollar lawsuit. With a provisional list of over 1,600 musical works, the potential damages run to hundreds of millions of dollars.

‘Music Piracy Fuels Revenue’

Twitter’s revenue partly relies on advertising which, in turn, is boosted by additional views. According to the music companies, these advertisements are also clearly visible around infringing content.

The complaint lists several examples of infringing tweets with advertisements and promoted users surrounding them, each with many thousands of views.

In many cases, users upload infringing music videos to the platform. These tend to be quite popular and engaging, but unlike other platforms such as TikTok, Facebook and YouTube, rightsholders are not compensated.

According to the music companies, these tweets are the kind of quintessential copyright infringement explicitly prohibited by U.S. copyright law. They are quite popular, however, and can collect hundreds of thousands of views, as is the case with the Rihanna tweet below.

“The tweet, which simply states, ’15 years ago, rihanna [sic] released ‘umbrella’ [sic]’, contains over two minutes of the official music video for Rihanna’s performance of ‘Umbrella.’ The infringing tweet garnered over 221,000 views and nearly 15k ‘likes’,” the music companies write.

These numbers don’t mean that the platform itself is doing anything wrong. Under the DMCA, which Musk referred to as a plague, services such as Twitter are shielded from liability under certain conditions. But this safe harbor doesn’t apply here, the music companies suggest.

DMCA Takedowns & Repeat Infringers

The complaint alleges that Twitter’s response to DMCA takedown notices is sub-par. Since December 2021, the National Music Publishers Association (NMPA) has sent over 300,000 formal infringement notices, many of which didn’t lead to immediate removals.

“Despite claiming to take down tweets in response to an infringement notice within hours or minutes, Twitter routinely waits much longer before acting, if it acts at all.”

“Twitter’s incentive not to act expeditiously is clear. Twitter wants to maximize the benefit it receives from the infringing content on its platform before the tweet is deleted. As a general proposition, the value to Twitter of a tweet decreases over time.”

Under the DMCA, online platforms are required to implement a repeat infringer policy that allows for the termination of accounts that persistently share copyrighted content without permission.

The music companies note that Twitter used to have the term “terminate” in its copyright policy but in 2018 that wording was changed to “suspend.” These suspensions are not always permanent, the labels say.

“Even on the rare occasions where Twitter suspends an account used to infringe repeatedly, Twitter often reactivates that account after a short period of time. Twitter has suspended and reactivated certain accounts multiple times,” the complaint reads.

When accounts come back online, Twitter is more lenient to accounts with larger follower counts according to the music companies. The suggestion is that these accounts are more valuable to Twitter’s business model.

Hundreds of Millions

Based on these and other arguments, the complaint holds Twitter liable for both direct and contributory copyright infringement. Twitter’s actions cause substantial irreparable harm and the rightsholders seek compensation in return.

The complaint comes with a provisional list of over 1,600 musical works. For each of these, the rightsholders demand the maximum statutory damages of $150,000 per work, which means that there is roughly a quarter of a billion dollars at stake.

Interestingly, this isn’t the first lawsuit of this size against Twitter. Earlier this year, celebrity photo agency Backgrid filed a similar case against Twitter, demanding $229 million in damages.

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A copy of the music publishers’ complaint against Twitter, filed at the U.S. District Court for the Middle District of Tennessee in Nashville is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”

Historically, Internet providers rarely applied such a drastic measure, but under pressure from lawsuits, many ISPs are now acutely aware of their obligations.

Music Companies sued RCN

Internet provider RCN is one of the providers targeted by this legal campaign. Four years ago, the company was sued by several major music industry companies including Arista Records, Sony Music Entertainment, Universal Music, and Warner Records.

The music companies alleged that RCN wasn’t doing enough to stop subscribers from pirating on its network. Instead of terminating the accounts of persistent pirates, the Internet provider looked away, they argued.

The stakes in these liability lawsuits are high. Internet providers face hundreds of millions of dollars in damages claims, while tens of thousands of Internet subscribers are at risk of having their accounts terminated.

Exploring a Potential Settlement

RCN initially responded to the allegations with a counterattack. The company accused the RIAA and its anti-piracy partner of sending ‘false and fraudulent’ DMCA notices, arguing they shouldn’t serve as evidence for disconnections.

This countersuit ultimately failed . In two instances, a New Jersey federal court concluded that RCN failed to show that it was financially hurt by any incorrect or incomplete DMCA notices. As such, the case moved forward.

These cases can lead to a high-profile trial, but it appears that both parties are exploring options to end the matter before it gets that far. Specifically, they are considering a potential settlement.

“More recently, the Parties have communicated directly about the possibility of settlement but are not currently engaged in settlement discussions. The Parties are open to discussing potential settlement avenues with the Court,” they wrote in a status report to the court last week.

The settlement option is serious, both parties reiterated in a court hearing this week. And to help the process, U.S. District Court Judge Robert Hirsch appointed a mediator yesterday.

“Counsel and the parties (including individuals with settlement authority) shall attend mediation sessions as requested by the Mediator,” Judge Hirsch writes .

While we don’t know the positions of both parties, rightsholders have won similar lawsuits in the past which puts the music companies at an advantage. However, with a settlement, RCN is likely to avoid a Cox-style billion-dollar verdict .

Filmmaker Suit ‘Expands’

An eventual settlement won’t end all piracy-related trouble at RCN. The provider is also involved in a similar lawsuit with several movie companies; they recently tried to involve Reddit users in their evidence-gathering efforts.

This lawsuit continues, and a few days ago the plaintiffs filed an amended complaint in which they demand millions of dollars in damages. The complaint also calls for a site-blocking injunction targeting popular pirate site domains such as YTS, The Pirate Bay, and 1337x.

The amended complaint now lists high-profile law firm Foley and Lardner among the plaintiffs’ attorneys and adds new piracy evidence from Facterra. The evidence-gathering company, owned by American Films , was also added to a similar lawsuit against Internet provider WOW.

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A copy of the status update in the lawsuit between the music companies and RCN is available here (pdf) . The proposed amended complaint of the filmmakers against RCN can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

On January 2, 2015, a new system designed to assist copyright holders and better protect consumers went live in Canada.

Under the ‘Notice and Notice’ regime, ISPs are required to forward rightsholders’ copyright infringement notices to subscribers, in most cases those linked to the downloading and sharing of movies using BitTorrent. While generally considered a step forward, some warned that aggressive rightsholders would leverage the system to benefit themselves.

Late 2018, after some companies did exactly that, the Canadian government amended the Copyright Act to prohibit the inclusion of settlement demands in warning notices. Since then, rightsholders have filed dozens of applications at Federal Court to obtain the identities of tens of thousands of subscribers – many of whom were alleged notice recipients – so they could be sent cash settlement demands.

Same Core Companies, Same Core Business Model

Companies including Millennium Funding, Outpost Productions, Bodyguard Productions, Hunter Killer, and Rambo V Productions, make regular appearances in copyright lawsuits in the U.S. It was inevitable that their settlement model would eventually target Canadian subscribers but anyone paying attention would’ve known that was only the warm-up act.

Under common ownership , the same companies have also been suing and obtaining settlements from intermediaries in the U.S. including hosting companies , VPN providers , and the latest targets, internet service providers .

Regardless of jurisdiction, these actions operate along broadly the same lines; identify areas where intermediaries have allegedly failed to meet their piracy-fighting obligations, and then ruthlessly pursue high-value claims until a settlement begins to sound more appealing than the alternatives.

In their lawsuit against Bell, Millennium Funding and the other companies assert copyrights in half a dozen movies which may have been worth less than $1 million in damages in a U.S. lawsuit, give or take. In Canada, intermediaries who fail to meet their obligations under the Notice and Notice scheme face statutory damages of between CAD$5,000 and $10,000.

The movie companies claim that they sent over 81,000 notices to Bell between February 2019 and June 2021 but Bell failed to forward almost 40,000 of them. As a result, the plaintiffs believe they can multiply each of those notices by CAD$10,000 and file a claim against Bell for CAD$400 million.

First Bell Subscribers, Now Bell Itself

During a court hearing earlier this year dealing with the case against Bell, a lawyer for Bell Canada described the studios’ settlement model targeting internet users as “extortion.”

An attorney representing the studio’s legal team said that if Bell had an issue with handing over its customers’ details as part of the Notice and Notice scheme, it could have mentioned that earlier – when handing over its customers’ details as part of earlier applications, for example.

While the “extortion” comment was later withdrawn, allegations in a Bell counterclaim filed in response to the original CAD$400 million lawsuit had already gone much further. In a somewhat unusual move, Bell sued Aird & Berlis LLP, the law firm hired by the studios to send the infringement notices and the architect of their enforcement program in Canada.

Bell’s defense is relatively straightforward. The ISP admits that not all of the notices sent by the Millennium plaintiffs were forwarded to subscribers but any shortfall was for legitimate reasons. In some cases, the plaintiffs’ notices were not sent or not received by Bell. Other notices were not forwarded to subscribers because they contained inaccurate information, were duplicates of notices already sent, or Bell was unable to forward them because it had no email addresses on file for customers.

Bell Comes Out Fighting

In its counterclaim, Bell accused the plaintiffs and Aird & Berlis of engaging in conduct that constitutes misuse of copyright, abuse of process, and champerty and maintenance, whereby a third-party pays some or all of the litigation costs in return for a share of the proceeds. An “illegal and unlawful means conspiracy” that runs counter to public policy and the public interest, the company added.

In his order last June, Case Management Judge Kevin R. Aalto began with an analogy.

“It is often said in sports that the best defense is a good offense. Sometimes the same can be said for litigation. That is what Bell is trying to achieve here by suing by way of counterclaim the law firm acting for Millennium and raising what are policy issues relating to the Copyright Act,” Judge Aalto wrote.

“That is not the purpose of litigation. That is a matter for Parliament. Bell’s attempt to turn this case into an inquiry on the propriety of copyright enforcement arising from the Notice and Notice Regime is misplaced.”

Bell said that Aird & Berlis intimidated alleged infringers and forced settlements greater than actual damages suffered. Judge Aalto pointed out that the Notice and Notice regime facilitates no direct communication between rightsholders and alleged infringers. Contact only takes place after the plaintiffs obtain their identities as part of a separate process.

More fundamentally, Judge Aalto said no facts supported Bell’s allegation of misuse of copyright, even if misuse of copyright was a cause of action, which it is not. If misuse of copyright was applicable at all, that would be for alleged infringers to address, not Bell.

Allegations, But Little to Support Them

In another setback for Bell, the abuse of process and unlawful means conspiracy allegations performed no better than the allegations of champerty and maintenance.

“There are no material facts whatsoever to connect the dots as to how [Aird & Berlis] and Millennium are not in a solicitor-client relationship that somehow amounts to the tort of abuse or unlawful means conspiracy,” Judge Aalto added .

With that, Bell’s allegations of copyright misuse, champerty and maintenance, abuse of process and unlawful means conspiracy were struck out, without leave to amend. Bell went on to appeal and in an order dated May 31, 2023, Judge Angela Furlanetto mostly found in favor of the Case Management Judge and by extension, the movie companies.

Bell Canada wasn’t the first and certainly won’t be the last to describe settlement schemes as extortion. Equally, the companies in this particular action won’t be the last to remind people that in the face of large-scale piracy, plaintiffs are legally permitted to run right up against the limits of the law until lawmakers decide otherwise.

In that respect, not a single inch of progress was made in the last 15 years, globally, but it’s the tendency for defendants to settle that provides the most fuel. The question is whether Bell will decide to make a stand or top up the tank along with its customers.

Millennium Funding, Inc. v. Bell Canada: Proceedings and May 31, 2023 Order

From: TF , for the latest news on copyright battles, piracy and more.

Internet provider Cox Communications has been on the sharp end of several piracy lawsuits in recent years.

The biggest hit came four years ago when the Internet provider lost its legal battle against a group of major record labels.

$1 Billion Appeal

A Virginia jury held Cox liable for pirating subscribers because it failed to terminate accounts after repeated accusations, ordering the company to pay $1 billion in damages to the labels. This landmark ruling is currently under appeal .

As part of the appeal, Cox informed the court of a supplemental authority that could support its position. The case in question is Twitter vs. Taamneh , in which the U.S. Supreme Court recently held that the social media platform isn’t liable for ISIS terrorists, who used Twitter to recruit and raise funds.

The Supreme Court rejected the claim that Twitter aided-and-abetted terrorist activity, because it didn’t “consciously and culpably” participate in the illegal activity. According to Cox, the same logic applies in its case, where the ISP was held liable for the piracy activities of subscribers.

“These same aiding-and-abetting principles animate copyright law’s contributory liability doctrine, and they likewise foreclose liability here,” an attorney for Cox informed the court.

Cox argues that the Supreme Court ruling confirms that aiding-and-abetting liability only applies when parties knowingly took part in the activity. That runs contrary to the finding in its own dispute with the record labels, where “culpable expression and conduct” or “intent” were not required.

“Though Twitter arises in a different context, its reasoning applies with full force and supports reversal of the contributory infringement verdict,” Cox added.

The two cases are indeed quite different, but ultimately they are about imposing liability on third-party services. According to Cox, the Twitter terrorist ruling clearly shows that it isn’t liable for pirating subscribers, but the music companies see things differently.

Terrorists vs. Pirates

Earlier this week, the music labels responded in court, countering Cox’s arguments. They argue that the Twitter ruling doesn’t apply to their piracy dispute with Cox, as the cases are grounded in different laws.

While the music industry certainly isn’t happy with pirates, the Cox case is a copyright matter while the Twitter lawsuit fell under the Justice Against Sponsors of Terrorism Act. And for now, pirates are not categorized as terrorists.

“Twitter arose under the Justice Against Sponsors of Terrorism Act. Plaintiffs there identified ‘no duty’ under that terrorism statute requiring defendants ‘to terminate customers after discovering that the customers were using the service for illicit ends’.”

“This case arises under the Copyright Act. This Court has already held that an internet-service provider has a duty to ‘do something’ about known infringers,” the music companies ‘counsel adds.

‘Not So Passive’

After establishing the difference between pirates and terrorists, the music companies point out that Twitter wasn’t directly connected to the misconduct. The platform’s role was more passive and its connection to ISIS was more distant than Cox’s connection to its subscribers.

Cox took a more active role and materially contributed to the pirating activities, which stands no comparison to the Twitter case, plaintiffs argue.

“Cox was not so passive,” the music company counsel writes, adding that the Internet provider “set up sham policies ensuring infringement would continue.”

“Cox knew of specific instances of infringement occurring on its network, tied them to specific users, and chose not to terminate those users to avoid ‘losing revenue from paying subscribers’,” the reply brief adds.

How the court of appeal will interpret the Twitter ruling remains to be seen. With $1 billion in damages on the line, both sides will likely do everything in their power to fight this case to the bitter end, and it may ultimately find its way to the Supreme Court.

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A copy of Cox’s letter to the court, including the referenced Supreme Court ruling can be found here (pdf) . The music companies ‘reply is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Last fall, a Texas federal jury found Grande Communications liable for willful contributory copyright infringement and ordered the ISP to pay $47 million in damages to a group of record labels.

District Court Judge David Ezra confirmed the judgment in January. This was a clear mistake, according to Grande, which hoped to have it overturned.

ISP Wants a Do-Over

In March, the Internet provider filed a renewed motion for judgment as a matter of law. Put simply, Grande wanted the Judge to overrule the jury. This is warranted if the evidence clearly weighs in favor of the requesting party but when a jury finds otherwise.

If that is not an option, the ISP asked the court for a new trial to allow the piracy liability issues to be raised again before a new jury.

Yesterday, U.S. District Court Judge David Ezra ruled on the motion, denying both requests. According to the order, there is nothing wrong with the jury verdict and the court didn’t make any clear errors either.

Request Denied

To make its case, the ISP raised a wide variety of issues, including the argument that there was a lack of copyright infringement evidence at trial.

For example, there were no copies of the 1,403 original copyrighted works to compare against the allegedly pirated music tracks. In addition, it was unclear if the infringers were actually Grande subscribers, instead of unauthorized network users such as wifi-stealing neighbors.

Judge Ezra sees things differently. In his order, he writes that the evidence included a hard drive of download files and detailed testimony showing that the downloads matched the copyrighted sound recordings.

Self-Undermining Admission

The notion that strangers could have used Grande subscribers’ connections didn’t make an impact either. According to the order, Grande itself argued at trial that subscribers are liable for everything that takes place through their connection.

“Grande undermined its theory about unauthorized users conducting infringement by admitting at trial that it holds its subscribers fully responsible for all conduct occurring on their accounts, whether they are authorized users or not,” Judge Ezra writes.

The ISP also argued that the evidence failed to show that Grande users actually uploaded the pirated tracks to others. Again, the court found the argument unconvincing.

Judge Ezra stresses that “actual dissemination” of pirated content is not required to prove direct infringement on a distribution theory; showing that it was “made available” suffices.

Sufficient ‘Distribution’ Evidence

In this case, the court believes that there was sufficient direct and circumstantial evidence that Grande users uploaded pirated content. Part of this evidence comes from the music company’s piracy-tracking partner Rightscorp.

“Plaintiffs provided evidence of actual uploads by Grande users, and downloads by Rightscorp: Rightscorp reapproached Grande users who had previously offered the work for copying and downloaded at least one complete copy of the work,” Judge Ezra writes.

All in all, the court concludes that Grande fails to make a proper case for a new judgment or trial.

“Neither Grande’s legal nor evidentiary arguments warrant judgment as a matter of law or a new trial. Accordingly, the Court DENIES Grande’s Renewed Motion for Judgment as a Matter of Law or a New Trial,” the final order reads.

Appeal Forthcoming

This effectively means that the $47 million music piracy verdict stands. However, this still isn’t the end of the legal dispute, as there are more options to challenge the outcome.

The ISP previously indicated it would appeal the jury verdict at the United States Court of Appeals for the Fifth Circuit if its motion was denied. We therefore expect an appeal to be filed in the near future.

Grande hasn’t been able to catch a break in court recently. In addition to the multi-million dollar verdict and this week’s rejection, its motion to dismiss in a separate piracy liability lawsuit against filmmakers was also denied .

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A copy of U.S. District Court Judge David Ezra’s order denying Grande’s renewed motion for judgment as a matter of law or a new trial, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Two years ago, a group of several film companies including the makers of Hellboy, Rambo V, The HItman’s Bodyguard, and Dallas Buyer’s Club, sued Internet provider Grande Communications.

The filmmakers accused the Astound-owned ISP of not doing enough to stop pirating subscribers. Specifically, they alleged that the company failed to terminate repeat infringers.

In addition to millions of dollars in potential damages, the plaintiffs also asked for strict anti-piracy measures. This includes a three-strikes termination policy against alleged pirates as well as an outright block of various pirate sites, including The Pirate Bay.

Motion to Dismiss Denied

Grande challenged the claims and filed a motion to dismiss the case. The ISP addressed the substance of the allegations and described the film companies and their anti-piracy partner Maverickeye as “copyright trolls”.

After reviewing the positions from both sides, the Texas federal court largely denied the motion to dismiss , noting that the filmmakers’ allegations are plausible enough for the case to continue. The requested pirate site-blocking injunction was dismissed, however, although it can be reintroduced at a later stage.

The order means that the case will continue and the parties will continue collecting evidence. This brings us to the next topic on the court’s agenda; a request from the filmmakers to release the identities of 125 Grande subscribers who were repeatedly flagged for sharing pirated films.

Subscribers Object

The identification request was submitted last year. The filmmakers say they have no intention of filing legal claims against the users, but the companies would like to contact them to learn more about Grande’s repeat infringer policy and other issues relevant to its claims.

A court order clarified that ‘all Protected Information provided by any party or nonparty…shall be used solely for the purpose of…trial…and for no other purpose…’

Despite these assurances, at least six subscribers filed official objections with the court. Nearly all of them denied having downloaded the pirated films and one subscriber said they had never received a copyright infringement complaint, contrary to the filmmakers’ claim.

Objections Overruled

After reviewing the subscribers’ objections, which were not shared with the filmmakers and the ISP, Magistrate Judge Dustin Howell decided to overrule them. This means that Grande must identify all 125 subscribers and share their personal details with the plaintiffs.

Judge Howell doesn’t refute the accuracy of the objections but concludes that the interests of the movie companies outweigh the privacy concerns of the subscribers. Specifically, the subscribers can provide important evidence to back up the filmmakers’ claims.

“The Court agrees with Plaintiffs that the subscriber information is relevant to the factual matters to be addressed in this case and that the burden imposed on the subscribers is not undue,” Judge Howell writes.

“Plaintiffs explain in their motion that the subscriber information will enable Plaintiffs to tie individual users to the allegedly infringing IP addresses and respond to Grande’s safe-harbor defense regarding the effectiveness of Grande’s notice procedure.”

The Neighbours?

Judge Howell further notes that it doesn’t matter whether the account holders pirated anything themselves. If a neighbor or friend used their connection to download something, the request for information would still be valid for the purpose of this lawsuit.

Finally, the court addresses privacy concerns. Judge Howell notes that the earlier mentioned protective order prevents the movie companies from using the subscribers’ details for anything unrelated to its case against Grande.

“[T]he Court’s order protecting the privacy of the subscribers’ information and limiting its use adequately addresses the objectors’ concerns about the burden imposed by disclosing their personal information for use in this case,” Judge Howell notes.

As mentioned earlier, there was one subscriber who objected by claiming that they never received a copyright infringement notice from Grande. The court overruled this objection as well, as the lack of notice is particularly relevant to the case at hand.

Whether the filmmakers will be able to obtain any useful information from the subscribers is unknown, but in the event that they do, details are likely to appear in the near future.

Instant update: The movie companies just submitted a request to unseal the subscribers’ objections (pdf) , as these could prove to be useful too. This request only applies to the parties in this case, not the broader public.

“[T]he Court noted that in one objection […] the subscriber asserted not receiving notice from Defendant that its account had infringed copyrighted material. Accordingly, this and the other objections are relevant to proving Plaintiffs’ claims and rebutting Defendant’s assertion that it has implemented a repeat infringer policy.”

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A copy of the order overruling the subscribers’ objections, issued by Magistrate Judge Dustin Howell, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Every day, millions of people from all over the world submit posts, comments, and other content to Reddit.

In many cases, discussion comments are read and soon forgotten but several old threads were brought back to life recently as part of a piracy liability case.

Redditors as Evidence

The comments in question were picked up by Kerry Culpepper, a copyright attorney who leads several piracy lawsuits against Internet providers on behalf of independent film companies.

In the case at hand, the makers of The Hitman’s Wife’s Bodyguard, London Has Fallen, Hellboy and other films, accuse Internet provider RCN of not doing enough to stop subscribers from pirating on its network. Instead of terminating the accounts of persistent pirates, the ISP turned a blind eye, the filmmakers argued.

The main lawsuit was filed at a federal court in New Jersey and the parties are in the process of gathering evidence. As part of this quest, the filmmakers stumbled upon responses from nine Reddit users , whose comments are potentially relevant to the dispute.

For example, a comment from Redditor “ChikaraFan” noted the following regarding RCN’s handling of copyright infringement emails:

“Seems extremely rare if ever. RCN seems fairly lax…no data caps. I looked up before I switched and had little trouble.”

Reddit doesn’t usually give up the identities of its users. However, in February the movie companies obtained a subpoena asking Reddit to share the personal details of nine users, including relevant IP-address logs.

Reddit Objects

Reddit was unhappy with the subpoena, characterizing it as overbroad . According to Reddit’s lawyers, the subpoena was more akin to a fishing expedition than regular evidence gathering. As such, Reddit only handed over the details of one user whose comment mentioned RCN, denying other ‘less relevant’ ones, citing the users’ First Amendment right to anonymous speech.

This refusal to hand over user data triggered the filmmakers to file a motion to compel. Since the subpoena was issued in California, the motion was handled there as well, separate from the main lawsuit.

The case was heard last week by U.S. District Court Magistrate Judge Laurel Beeler via a virtual hearing over Zoom. Since Reddit previously handed over information relating to one user, the identities of eight others was at stake.

From the get-go, the Judge said that she was inclined to deny the motion to compel, thereby protecting the Redditors’ right to anonymous speech. The film companies’ attorney, Kerry Culpepper, was still allowed to present his arguments.

Culpepper argued that the comments are highly relevant to show that RCN didn’t have a proper repeat infringer policy. In addition, they could help to show that RCN can monitor its subscribers and that its lax policies acted as a draw to potential customers.

As the only party able to identify the commenters, Reddit’s role is essential, the filmmakers’ attorney said. Without Reddit’s help, obtaining this information simply isn’t possible.

Anonymous Speech Outweights Rightholders’ Interests

While Judge Beeler acknowledged the potential interest the filmmakers have in the user data, in this case the Redditor’s right to remain anonymous outweighs the interests of the rightsholders.

According to the court, the comments are too general and, for some users, it is not even clear that they’re RCN customers. When added to the fact that the subscribers are not suspected of any wrongdoing themselves, the balance tips in favor of the Reddit users.

“The court denies the motion to compel and quashes the subpoena because on this record, the First Amendment bars the discovery,” Judge Beeler writes in her order, issued shortly after the hearing.

Other Ways to Get Information

The court’s standard for review was whether the Redditors’ comments were directly and materially relevant to a core claim or defense. Judge Beeler doesn’t believe that’s the case here, as there are other ways for the filmmakers to back up their claims against RCN.

For example, through discovery, the plaintiffs can obtain information about RCN’s repeat infringer policy and data caps from the company itself.

The above-mentioned comment from the user ChikaraFan was the “closest call” according to Judge Beeler. It makes sense for the filmmakers to want this evidence but Reddit doesn’t have to share the user’s personal details.

“ChikaraFan was apparently drawn to RCN’s lack of ‘data caps,’ which is another technical issue that can be illuminated by discovery from RCN itself,” Judge Beeler writes.

“Even as to the issue of customers being drawn to RCN, the question here is whether the information is available from ‘any’ other source. It is implausible that this one (First Amendment protected) user is an irreplaceable source.”

The denial means that the identity of the eight Reddit users won’t be shared with the filmmakers. While these users aren’t accused of any wrongdoing, not being dragged into a copyright dispute through the side door is likely to be a relief.

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A copy of U.S. District Court Magistrate Judge Laurel Beeler order on the motion to compel is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Over the past two decades, online piracy has proven a massive challenge for the entertainment industries.

Copyright holders have tried to go after individual pirates and pirate sites in court, but third-party intermediaries are now increasingly seen as targets as well.

Several active lawsuits in the United States feature rightsholders accusing Internet providers of not doing enough to stop piracy. One of the main allegations is that ISPs fail to terminate the accounts of repeat infringers in ‘appropriate circumstances’ as the DMCA requires.

These lawsuits have resulted in multi-million dollar judgments against Cox and Grande . Meanwhile, more companies at risk too, such as WideOpenWest (WOW!), which was sued by a group of smaller movie companies, including Millennium Media and Voltage Pictures.

The filmmakers accused the Colorado-based ISP of failing to terminate the accounts of subscribers who were repeatedly flagged for sharing copyrighted material. They argue that WOW! is liable for these piracy activities and are demanding millions of dollars in damages.

WOW! Wants ‘Troll’ Case Dismissed

The ISP challenged the claims and filed a motion to dismiss the case. WOW! addressed the substance of the allegations and described the film companies and their anti-piracy partner Maverickeye as “copyright trolls”.

“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,” they wrote.

Indeed, several of the plaintiff film companies have filed cases against individual file-sharers, but they have also sued hosting providers, site operators, and app developers.

Responding to the substance of the allegations, WOW! argued that an IP address is not sufficient to prove that subscribers downloaded or shared any infringing material. And if that’s not clear, the ISP can’t be held liable either.

Something More?

To back this up, WOW! cites the Cobbler Nevada v. Gonzales case, where the court held that an IP-address alone is not sufficient to identify an infringer.

In the present lawsuit, WOW argues that IP-address evidence (~30,000 piracy notices) doesn’t prove that its subscribers pirated content; it could also be someone else using the network. To build a valid case, rightsholders should have ‘something more’ than just IP-addresses.

“Plaintiffs do not allege facts showing that any WOW subscriber committed direct copyright infringement; that WOW had knowledge of the specific alleged infringements at issue; or that WOW encouraged, induced, or profited from any alleged direct infringement,” the ISP wrote.

“But here, Plaintiffs only identify the alleged direct infringers by IP address; there are no additional allegations demonstrating that the activity at that IP address came from a WOW subscriber, and not some other user of WOW’s network.”

Court Refuses to Dismiss Copyright Claims

A few days ago, Colorado District Court Judge Daniel D. Domenico ruled on the motion to dismiss and rejected most arguments. For one, the Judge doesn’t believe the “Cobbler” ruling is directly relevant here, as that was a case against an actual infringer, not an ISP.

For this lawsuit, the provided IP-address evidence is sufficient to allege that WOW! can be held liable for the copyright infringements of its subscribers. The court doesn’t rule on the merits yet but notes that the filmmakers’ arguments are good enough to move the case forward.

“Taking Plaintiffs’ factual allegations as true in this early stage of litigation, Plaintiffs have plausibly stated that Defendant had knowledge of its subscribers’ direct infringement, if not from the 30,000 notices, then from the correspondence between counsel.

“It is reasonable to infer that such notices and correspondence gave Defendant enough knowledge to have done something about the alleged direct infringement,” Judge Domenico adds.

Ability to Stop Infringements

The court also believes that the movie companies sufficiently plead the various copyright infringement allegations. They include contributory and vicarious copyright infringement claims.

To allege vicarious liability, for example, the filmmakers have to plead that WOW! had the right and ability to supervise the infringing activity and had a direct financial interest in the activities of pirating subscribers. According to the court, that’s the case here.

“Plaintiffs in this case have sufficiently pleaded that Defendant’s advertisements for high download speeds and known practice of ignoring or failing to act on notices of infringement serve as a draw for subscribers.

“Likewise, Plaintiffs sufficiently pleaded that Defendant has the legal ability to stop and limit copyright infringement by its subscribers,” Judge Dominico writes.

Based on these and other arguments, WOW!’s motion to dismiss the copyright infringement claims is denied,

Grande’s Motion to Dismiss also Strands

In addition to the WOW! case, the filmmakers also lodged a complaint against Grande Communications . Grande lost a similar case against several music companies last fall but hoped to have this lawsuit dismissed.

The motion to dismiss is largely the same as WOW!’s, which makes sense as both parties are represented by the same attorneys. Unfortunately for Grande, the ruling on the motion to dismiss is similar as well.

In January, a Texas federal court issued a report and recommendation, concluding that the motion to dismiss the copyright claims should be denied.

“Plaintiffs have alleged in their pleadings that Grande has received Notices about specific infringing uses of its services, but failed to take measures to prevent such uses, and failed to investigate the piracy,” Magistrate Judge Howell wrote.

“The undersigned finds that Plaintiffs have alleged sufficient facts to state a plausible claim of contributory copyright infringement against Grande, which is all that is required at the motion to dismiss stage.”

District Court Judge Robert Pitman adopted the recommendation last week. This means both WOW! and Grande will have to defend themselves against the piracy liability claims.

No Pirate Site Blocking Injunctions, Yet

The motions to dismiss weren’t denied in their entirety, however. In both cases, the filmmakers also requested pirate site-blocking injunctions, to limit piracy activity on the Internet providers’ networks.

In addition, the movie companies requested broad injunctions requiring the ISPs to identify pirates and suspend the accounts of subscribers who receive three unique DMCA notices in 72 hours.

The federal courts in Texas and Colorado both granted the motions to dismiss these injunction requests, as these proposed measures are remedies, not causes of action. However, they could be reintroduced at a later stage.

“I agree and will grant Defendant’s motion to dismiss Plaintiffs’ ‘claim’ for injunctive relief. I note, however, that dismissal of this ‘claim’ does not preclude Plaintiffs’ from seeking injunctive relief if appropriate as a remedy should they prevail on the merits of one or more of their claims,” Judge Domenico writes in the WOW! case.

All in all, the recent orders are a win for the movie companies, as they can continue with their piracy liability claims. However, there is still a long way to go before there’s a final decision on the merits of those claims.

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A copy of Judge Domenico’s order on the motion to dismiss in the WOW! lawsuit is available here (pdf) . The recently accepted report and recommendation to largely deny Grande’s motion to dismiss can be found here (pdf) .

From: TF , for the latest news on copyright battles, piracy and more.