Altice Can’t ‘Police the Internet,’ Says Reply in Support of Motion to Dismiss

BMG Rights Management and its co-plaintiff record labels “distort long-standing copyright jurisprudence” in an attempt to distract the court from the contributory infringement and vicarious liability claims they don’t and can’t plead, said Altice’s reply brief Monday (docket 2:22-cv-00471) in U.S. District Court for Eastern Texas in Marshall in further support of its motion to dismiss. The music companies allege Altice ignored the rampant infringement of its internet subscribers (see 2303070045).

Aware that recent decisions rejected “materially identical” vicarious liability claims on the pleadings, the plaintiffs argue a “hypothetical” economic incentive for Altice to tolerate infringement “can replace the required direct financial benefit” from copyright wrongdoing, said the reply. “This radical departure from well-established precedent would eliminate any rational bound on vicarious liability,” it said.

The plaintiffs can’t dispute Altice’s “inability to monitor millions of users, block access to particular content, or thwart infringement in real time,” said the reply. They argue instead the ability to terminate internet service should suffice, it said. But the “blunt tool” of terminating a customer’s account doesn’t give Altice “the ability to supervise a user’s internet activity, nor would it stop the alleged infringement in any event given the many access points to the internet,” it said.

On their contributory infringement claim, the plaintiffs don’t even suggest their complaint alleges culpable intent, which the 2005 Supreme Court decision in MGM Studios v. Grokster requires, said the reply. Recognizing these “deficiencies,” the plaintiffs try to “shore up” their legal theories with “misleading appeals” to the Digital Millennium Copyright Act, it said. But the DMCA doesn’t create a cause of action, it said. The statute provides a safe harbor from damages “irrespective of liability,” it said. “Its plain language also forecloses that it has any bearing on liability.”

The plaintiffs fail to adequately plead vicarious liability because they can’t allege Altice drew a “direct financial benefit” from the infringing activity of its internet subscribers, said the reply. Their inability to plead “basic cause-and-effect” -- that when Altice’s peer-to-peer users infringe, Altice profits -- is “inescapable,” it said.

The plaintiffs also fail to allege Altice can control the claimed infringing activity of its internet subscribers, said the reply. They allege only that Altice “maintains the ability to revoke internet access,” whether through a temporary suspension or more permanently through account termination, it said. But that on/off switch doesn’t give Altice “the ability to control what individuals do when they are surfing the web,” it said.

Altice can’t “police the internet,” said the reply. “It can neither stop people from getting online nor control what they do when there,” it said. If it suspends a user account, the user could access the internet through a mobile phone or a neighbor’s Wi-Fi, it said.