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Record industry hits back at Charter Communications over dodgy takedown claims

By | Published on Monday 22 June 2020

Charter Communications

The US record industry last week hit back at American internet service provider Charter Communications requesting that the courts dismiss claims the net firm has made against the major labels – to the effect that said labels breached US copyright law by knowingly submitting false takedown requests – because those claims are based on a “pyramid of conjecture”.

Charter is one of the ISPs that the major record companies are trying to hold liable for the copyright infringement of its users, citing the precedents set in the similar cases pursued against Cox Communications.

ISPs would usually be protected from such liability by the pesky copyright safe harbour. But the music industry argues that various net firms have operated deliberately shoddy systems for dealing with infringing content and repeat infringers on their networks, and therefore do not qualify for safe harbour protection under America’s Digital Millennium Copyright Act.

That legal battle is ongoing, but earlier this year Charter alleged that the record industry had also failed to fulfil its obligations under the DMCA. That being based on that claim that the labels had submitted takedown requests to the ISP for music they didn’t actually control. In a subsequent legal filing, Charter also argued that those allegedly dodgy takedown requests violated the Colorado Consumer Protection Act too.

In a legal filing submitted last week, the labels denied all those claims. They noted that Charter’s dodgy takedown request allegation followed a decision by the labels to remove some of the tracks specifically mentioned in their original lawsuit against the ISP. That edit of the list of works allegedly infringed by Charter’s customers was, the labels argued, “unremarkable”.

However, the labels went on: “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”.

“Based on this pyramid of conjecture”, they added, “Charter alleges claims for damages under the Digital Millennium Copyright Act … for sending knowingly false infringement notices, and under the Colorado Consumer Protection Act … for deceptive trade practices”.

Both claims should be dismissed, the labels said. First, because Charter can’t prove that the labels knowingly submitted takedown requests for music they did not control, nor show that it responded to any of those takedown requests. Second, federal law – ie the DMCA – pre-empts the ISP’s claims under state law – ie the Colorado Consumer Protection Act – and, anyway, Charter doesn’t fulfil its obligations under that state law either.

“For the reasons stated above, plaintiffs respectfully request that the court dismiss Charter’s … counterclaims under the DMCA and CCPA with prejudice”, the labels concluded.

In some ways this dispute over the labels’ takedown notices is a sideshow to the main copyright infringement case being pursued against Charter. Though it will still be interesting to see how the court responds to the labels’ response.