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US judge refuses to dismiss the record industry’s copyright case against net firm RCN

By | Published on Thursday 3 September 2020


A US judge has declined to dismiss one of the ongoing copyright lawsuits being pursued by the American record industry against an internet service provider. This time the ISP is RCN.

Like fellow American ISPs Cox Communications, Charter Communications, Bright House and its own sister company Grande Communications, RCN is accused facilitating the copyright infringement of its users in such a way that it should be held liable for that infringement.

Those arguments are based on the successful lawsuits pursued by both BMG and the majors against Cox. Net firms usually claim that they have safe harbour protection from liability for their users’ infringing ways. But the labels – successfully in the Cox cases – have argued that some ISPs had deliberately shoddy systems for dealing with infringement and infringers on their networks, and so should be deprived safe harbour protection.

Seeking to have the label lawsuit dismissed, RCN presented pretty much the same arguments as its competitors in a legal filing earlier this year. Mainly that the labels haven’t proven any actual direct infringement on its networks, that it didn’t profit from any customers infringing, and that the labels’ anti-piracy agency Rightscorp couldn’t be trusted. Which is why it basically ignored millions of copyright notices said agency sent.

It also brought up the good old Betamax defence that was a big talking point in the original file-sharing legal battles of the early 2000s. That’s a 1980s legal precedent relating to video recorders and the liability – or rather not – of the makers of such recorders for the copyright infringement those devices enable once sold.

The relevance of that in online infringement cases was generally dismissed in one of the landmark file-sharing cases – the one involving Grokster – which the judge hearing the RCN case pointed out in a ruling earlier this week. He also concluded that those other arguments – that haven’t worked in any of the other labels v ISP cases – were not sufficient to dismiss the record industry’s lawsuit at this stage.

However, the judge did grant a motion to dismiss the labels’ accompanying claims against Patriot Media Consulting, a company that has involvement in both RCN and Grande and which, the labels argue, “effectively makes all policy decisions for RCN”. That claim hadn’t been sufficiently proven for the specific allegations against Patriot to proceed, the judge said.