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Charter’s dodgy takedown claims against the major labels dismissed

By | Published on Tuesday 10 November 2020

Charter Communications

A US court has rejected a counterclaim filed by American internet service provider Charter Communications in its ongoing legal battle with the record industry. Charter accused the labels themselves of violating the US Digital Millennium Copyright Act by knowingly submitting dodgy takedown requests. The judge concluded that the ISP hadn’t presented any proof of that.

Charter is one of several American ISPs being sued by the record industry in the wake of the big Cox Communication cases. That was where BMG and then the majors successfully argued that Cox had a deliberately shoddy system for dealing with repeat infringers among its customer base. Therefore, Cox should not qualify for protection under the copyright safe harbour, meaning it can be held liable for the copyright infringement of its users.

Facing the same allegations, Charter – among other things – hit back with its own claims against the labels. Basically, the major labels had previously amended their lawsuit removing 455 songs and recordings from a list of works they claimed Charter customers had specifically infringed. The ISP argued that that was because it turned out the majors didn’t actually own those copyrights. And, therefore, they should never have filed takedown notices in relation to those works.

Charter are not the only internet company fighting copyright infringement lawsuits from the music industry that have hit back in this way. Various companies have accused the labels – or their trade body or the anti-piracy agencies they employ – of routinely issuing takedowns over music they don’t control. Knowingly doing so would violate the DMCA, which includes obligations for takedown issuers as well as the safe harbour-dwelling companies that receive the takedown requests.

However, dismissing those arguments in the Charter case, a judge recently stated: “Even if I assume, as does Charter, that plaintiffs dropped the 455 works because they did not have a valid infringement claim as to them, Charter has not alleged facts plausibly showing that plaintiffs knowingly or materially misrepresented its infringement claims in the original complaint”.

The ruling went on: “The closest the counterclaim comes to alleging a knowing misrepresentation is in paragraph 80 [of the counterclaim], which asserts, ‘upon information and belief, at all times, plaintiff had or should have had 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'”.

But, the judge said, “That conclusory statement, asserted on ‘information and belief’, and sounding in language of negligence, falls short of the mark”.

The judge also said that, in the context of the 11,482 works allegedly infringed by Charter customers, the removal of 455 of those works was “not material”.

And also Charter hadn’t been damaged by any allegedly false takedown requests because it never disconnected any customers based on copyright complaints, that being a core part of the labels’ litigation, ie that the ISP didn’t have a proper system for dealing with repeat infringers.

It remains to be seen how Charter responds, and whether this judgement impacts on other internet companies making similar dodgy takedown allegations when faced with copyright infringement lawsuits from the labels.