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RCN has another go at accusing the majors of issuing takedown notices in an unlawful way

By | Published on Friday 23 July 2021


US internet service provider RCN is having another go at defeating the lawsuit pursued against it by the major record companies, filing an amended response and counterclaim with the court earlier this week. It again criticises the approach of the labels’ anti-piracy agent Rightscorp, while also throwing in the extra claim that said agent is acting as a private investigator without the appropriate licences.

RCN is one of a number of American ISPs that have been sued by the record industry over the copyright infringement of their users. The labels argue that because the internet companies have deliberately shoddy systems for dealing with infringement and repeat infringers on their networks, they shouldn’t enjoy protection under the copyright safe harbour, meaning they can be held liable when their customers infringe copyright.

Charter Communications, Bright House Networks and RCN’s sister company Grande Communications have all also been targeted with litigation in the wake of BMG – and then the majors – successfully suing Cox Communications on this issue.

All the targeted ISPs have at some point criticised the way the record labels and their anti-piracy agents submit copyright takedown notices to internet companies, generally arguing that the record industry takes a slack approach meaning those notices cannot be trusted and are therefore not solid proof that any one customer has been infringing copyright.

RCN previously accused the majors and Rightscorp of “unfair and fraudulent” practices – and of breaching the California Business & Professions Code – by flooding them with so many copyright notices that it creates “an environment in which ISPs, including RCN, have no choice but to indiscriminately terminate the internet access of every customer accused of copyright infringement, or face the wrath of the record labels and the Recording Industry Association Of America”.

However, the judge overseeing the case recently dismissed the ISP’s counterclaim, mainly on the basis that the net firm had failed to demonstrate that the way the labels and Rightscorp issue takedown notices caused the company “cognisable economic injury” under California’s Unfair Competition Law. However, the ISP was told that it could file an amended complaint.

And that’s what it did earlier this week. The new filing covers quite a lot of the same ground as the previous one, in particular criticising Rightscorp for deleting data in relation to any allegedly copyright infringing conduct it discovers among RCN’s userbase.

“Rightscorp claims to obtain data enabling it to identify music files being shared over BitTorrent that are copies of [a major label owned track] and to identify BitTorrent users who are sharing those files on a particular ISP’s network”, the amended complaints says.

“But after identifying the potential infringers”, it goes on, “Rightscorp deletes all of the data so that no one can ever question how Rightscorp actually determined that the alleged copy was in fact a copy – if it made that effort at all – or how it identified potential infringers on the ISP’s network”.

“Then, Rightscorp says that it connects with the potential infringers over BitTorrent and receives data demonstrating that they actually possess the target music file and are offering to share it with others”, it continues. “Rightscorp deletes all of that data too, even though it is the actual evidence of copyright infringement (according to its own theory of infringement)”.

With that data deleted, RCN adds, when Rightscorp emails a takedown notice to an ISP, it doesn’t have any proof of the alleged infringement.

Says the ISP: “Although Rightscorp has sent millions of these emails to RCN, not a single one included any actual evidence of copyright infringement. Rightscorp could not even be bothered to digitally sign its emails to verify its identity, even though RCN expressly requires digital signatures and has repeatedly attempted to notify Rightscorp of its noncompliance”.

None of these gripes are new, so it remains to be seen if the amended complaint is sufficiently different to the previous one to convince the judge that RCN has a legitimate complaint against the majors and Rightscorp.

Either way, RCN’s legal filing insists that Rightscorp’s “intentional destruction of evidence that supports or contradicts millions of conclusory and unsupported accusations of copyright infringement against users of RCN’s network, and their scheme to wield that evidence against RCN and others solely for monetary gain, significantly harms competition, is immoral, unethical, oppressive, unscrupulous, and substantially injurious to consumers and competition”.

And, in more straight legal terms, RCN claims “these business practices are in violation of the California Business & Professions Code”.

Talking of violating the California Business & Professions Code, the new RCN filing also argues that “Rightscorp’s collection of evidence for use in court proceedings is an unlawful business practice because, on information and belief, Rightscorp and its representatives have been acting as private investigators without a licence, in violation of California and New Jersey law”.

“And on information and belief”, it continues, “the RIAA and record labels hired Rightscorp in order to benefit from its unlawful business practices despite knowing that Rightscorp and its representatives are unlicensed. These unlawful business practices are in violation of the California Business & Professions Code”.

The labels previously dubbed RCN’s original counterclaim “legally baseless”, arguing that it was just a distraction tactic designed to “deflect attention from RCN’s manifest liability” for copyright infringement. They will presumably argue that same about this amended counterclaim.