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US judge rejects RCN’s latest round of Rightscorp dissing

By | Published on Wednesday 4 May 2022


A US judge last week again knocked back a counterclaim made by one of the internet service providers sued by the record industry for not doing enough to combat copyright infringement on its networks.

RCN – like various other ISPs – has been sued by the major labels over allegations that it did not, in the past, have an effective policy in place to deal with repeat copyright infringers among its user base. That’s important because such a policy is required if an internet company wants to qualify for safe harbour protection under US copyright law, so that it can’t be held liable for the copyright infringement of its users.

The big test cases in this domain were against Cox Communications, initially via a lawsuit filed by BMG, and then a subsequent lawsuit filed by the majors. In both cases it was ruled that Cox had a deliberately shoddy system for dealing with repeat infringers, and therefore couldn’t rely on safe harbour protection, and was therefore liable for its users’ copyright infringement.

Given that Cox was then ordered to pay the majors a billion dollars in damages, it’s understandable that the other ISPs targeted with lawsuits of this kind are desperately trying to find any legal argument they can in order to counter the copyright claims made by the record companies.

A common tactic – although one that hasn’t generally worked in court – is to accuse the labels and the anti-piracy agencies they employ of bad conduct when it comes to the monitoring of copyright infringement on any one ISP’s networks, and the issuing of copyright notices to the net firms when infringement is spotted.

In the RCN case, the anti-piracy agency employed by the labels is Rightscorp. The ISP has repeatedly accused Rightscorp of employing “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”.

RCN initially made those allegations in a counterclaim filed with the courts in October 2020. The judge overseeing the ISP’s dispute with the majors subsequently dismissed the counterclaim, but said that the net firm could file an amended complaint, which it did in July last year.

However, that amended complaint has now also been dismissed. The judge basically said that RCN’s beef is not actually with Rightscorp and how it goes about monitoring and reporting copyright infringement, but with the safe harbour provisions in US copyright law, and how it instructs copyright owners to do that monitoring and reporting. Or, more to the point, how it doesn’t instruct them.

Wrote the judge last week: “Internet providers [actually] take issue with Congress’s statutory regime concerning service provider liability for copyright infringement. Their desire for companies like Rightscorp to tailor infringement notifications in certain ways to save internet providers money is understandable but, as it stands, no such requirement is obligated by law. So any costs derived from internet providers’ preferences are theirs to bear alone”.

And so, with that specific defence tactic from RCN dismissed, the record industry’s copyright lawsuit against the ISP continues.