Last year, a group of major music companies sued Charter Communications, one of the largest Internet providers in the US with 22 million subscribers.
Helped by the RIAA, Capitol Records, Warner Bros, Sony Music, and others accused the ISP of deliberately turning a blind eye to its pirating subscribers.
Such claims are not new. The same music companies have sued several ISPs in the past and booked a major victory when a jury ordered Cox to pay a billion dollars in damages for turning a blind eye to piracy on its network.
Charter is determined to avoid ending up in a similar position. In March, it denied the copyright infringement allegations in court while striking back with some accusations against the record labels. According to Charter, the companies abused the DMCA by sending notices for tracks they didn’t own the rights to.
Fraudulent Piracy Notices Violated the Colorado Consumer Privacy Act?
At the end of April, the ISP expanded its claims by arguing that by sending false takedown notices, the record labels also violated the Colorado Consumer Privacy Act. This claim comes on top of the accusation that the music companies violated the DMCA.
“In the course of their business, the Record Company Plaintiffs caused their agent, the RIAA, to engage in unfair, unconscionable, deceptive, deliberately misleading, false, or fraudulent trade practices,” Charter argued, while highlighting the unauthorized copyright infringement notices.
The false notices harmed Charter, which spent significant resources processing the notices. In addition, they also impacted the broader public, who were falsely accused of breaking the law and received “baseless threats” based on the inaccurate notices.
These are strongly worded claims. However, according to the record companies they don’t hold up in court.
Record Labels Ask Court to Dismiss Charter’s Claims
This week, they submitted their answers to the Colorado federal court. As indicated before, the music companies ask the court to dismiss the claim that they violated the DMCA, arguing that the notices were not intentionally sent in error. In addition, the companies argue that the DMCA claim is barred because Charter didn’t remove or block any infringing content.
In a similar vein Warner Bros, Sony Music and the other labels also dispute the deceptive and fraudulent trade practice accusations under the Colorado Consumer Protection Act. These don’t hold us and should be dismissed as well, they say, for two separate reasons.
Firstly, the music companies argue that the DMCA preempts Charter’s CCPA counterclaim. The issue at hand is a DMCA matter and Congress intended for federal law to exclusively govern the DMCA notice process, which would mean that a state law claim can’t apply to the same conduct.
This argument doesn’t mean that there were no inaccurate notices sent. That’s also the case with the second defense from the record labels, which holds that Charter failed to state a proper claim under the Colorado Consumer Protection Act.
A proper claim would require proof that the music companies knowingly sent false notices and intended to mislead and deceive the receivers. This isn’t something Charter can prove, the labels say. The labels may have sent notices for music they didn’t own, without being aware of it.
In addition, Charter hasn’t provided any evidence that its customers were harmed, according to the labels. While subscribers may have received inaccurate threats, they were not disconnected from the Internet.
“Charter has not alleged that its subscribers suffered any harm resulting from any allegedly inaccurate notices. Indeed, Charter does not allege that it ever suspended or terminated a single subscriber based on infringing use of its network identified in an inaccurate notice sent by Plaintiffs,” the labels write.
The ISP will likely disagree with how the labels present the issue and ultimately it is up to the court whether Charter can continue to pursue its claims in court, or not.
A copy of the record labels’ motion to dismiss Charter’s counterclaims is available here (pdf).
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