Thursday, October 18, 2018

Record labels fail to get ISP safe harbour case beefed back up | UNLIMITED | CMU

Grande Communications

The American courts have knocked back efforts by the US record industry to beef up legal action against internet service provider Grande Communications. The record labels had hoped to restore some elements of their lawsuit that were previously dismissed by the courts, but a judge has declined to consider an amended complaint.

The Recording Industry Association Of America sued Grande Communications last year over its failure to deal with repeat copyright infringers among its customer base. The labels argued that the net firm should be deprived safe harbour protection and be held liable for its users’ infringement. The case very much mirrored BMG’s action against another American ISP, Cox Communications, the appeal of which was ongoing when this lawsuit was launched last year, but which has since been settled out of court.

Grande tried to have the entire case dismissed, but failed. However, in April this year the courts did cut down the RIAA’s lawsuit somewhat, by removing Grande’s parent company as a defendant and ruling that the record industry could only sue for contributory infringement and not vicarious infringement. Which might sound like mere semantics, but would likely impact on any potential damages.

Whether Grande could be deemed liable for both contributory and vicarious infringement depends on whether you believe the ISP commercially benefited from failing to deal with repeat infringers. When cutting the lawsuit back, the court ruled that that commercial benefit couldn’t be proven. But in May this year the RIAA said it now had new evidence that it thought strengthened the case for the vicarious infringement claim.

Those new claims were initially considered by a magistrate judge, who recommended that the RIAA’s bid to have elements of its original lawsuit restored be knocked back. In a formal recommendation, that judge stated: “The new allegations still fail to say anything about the motivations of Grande’s subscribers when they sign up with Grande. That is, plaintiffs still fail to plead facts showing Grande gained or lost customers because of its failure to terminate infringers”.

The RIAA then submitted new papers countering the magistrate judge’s conclusion, but earlier this week a district judge nevertheless followed his junior colleague’s recommendation. Writing that he had reviewed the case from start to finish before reaching this conclusion, the district judge said: “Having considered the motions, responses, replies, objections, the case file, and the applicable law, the court will accept and adopt the report and recommendation”.

Although this is a setback for the record industry, it doesn’t stop it from proceeding with its contributory infringement case against Grande. The RIAA is also pursuing its own litigation against Cox on the same issue.


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