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Another ISP accuses the record industry of submitting dodgy takedown notices

By | Published on Tuesday 28 July 2020


Another US internet company facing copyright infringement claims from the music industry has hit back accusing the major record companies of submitting takedown notices for tracks they don’t control, in violation of America’s Digital Millennium Copyright Act.

This time it is former internet service provider Bright House Networks making these claims. Like Cox Communications, Charter Communications and Grande Communications, it is accused by the record labels and music publishers of having a slack approach to dealing with copyright infringement and infringers on its network. Sufficiently slack, in fact, that it cannot rely on protection from the pesky copyright safe harbour, says the music industry.

Without safe harbour protection, these net firms can be held liable for their customers’ infringement. Something that got BMG $25 million in damages when it pursued the test case on this against Cox.

The majors then collectively scored a billion dollars in damages in their follow-on lawsuit, though that final damages figure could as yet be cut back by the courts. But either way, being held liable for your customers’ infringement can be costly for ISPs.

The legal cases against Charter, Grande and Bright House are ongoing. In its most recent legal filing, Bright House denies most of the allegations made against it before laying into the labels over the takedown notices they submit to net firms, something also covered by the safe harbour section of the aforementioned DMCA.

It points out that, as the case against Bright House has gone through the motions, the labels have removed from their lawsuit some of the specific tracks the ISP’s customers are accused of infringing. There were also some tracks listed in the earlier Cox case not mentioned in the Bright House case.

That, the internet company argues, is because the labels have realised they don’t actually control the rights in those tracks, despite previously submitting takedown notices that said they did.

Those allegations are important for companies like Bright House because they provide an excuse for why ISPs might ignore takedown notices sent to them by music companies, and also potentially mean that the labels themselves are in violation of the DMCA, which also sets out some rules for those issuing takedowns.

In a recent legal filing, Bright House states: “Upon information and belief, at least in connection with the dropped works … plaintiffs sent notices to Bright House with inaccurate information”.

That allegedly inaccurate information included: “That the record company plaintiff on whose behalf the notice was sent owned or controlled the work, and that the actions alleged to have been taken by Bright House’s subscribers constituted infringement of the record company plaintiffs’ rights”.

Based on the argument that the “dropped works” weren’t actually controlled by the labels, it goes on: “Plaintiffs either had or should have had knowledge, or acted with reckless indifference in failing to acquire knowledge, of the status of their purported ownership or control of copyrights when they sent infringement notices regarding those copyrights, including those at issue in this case”.

If all this sounds rather familiar, you’re possibly thinking of the dodgy takedown arguments previously presented by mixtape sharing platform Spinrilla in its copyright dispute with the labels. Or maybe the similar complaints made by Charter back in March as part of its ongoing legal battle with the music industry.

The fact that Bright House has made very similar complaints to Charter shouldn’t come as any surprise really. Because Bright House is now a subsidiary of Charter Communications and actually, these days, operates under Charter’s Spectrum brand.

The record companies responded to Charter’s claims of dodgy takedowns last month, accusing the net firm of making claims based on a “pyramid of conjecture”.

They stated in a legal filing: “Charter speculates on information and belief that [the labels] do not own or control exclusive rights in ‘at least some of these works’. Charter then leaps further to speculate, again on information and belief, that [the labels] did not own them years ago, but knowingly sent Charter false infringement notices about them anyway”.

None of that can be proven, the labels went on, so Charter’s counterclaim should be dismissed.

Given Bright House’s recent complaint is pretty much a carbon copy of that previously made by its parent company, presumably a carbon copy response from the labels will follow.