Record Labels Seek to ‘Install’ ISPs as Internet’s ‘Copyright Police,’ Says Altice

The recording industry in recent years has sought to “install” ISPs as the internet’s “copyright police,” said Altice USA’s motion Monday (docket 2:23-cv-00576) in U.S. District Court for Eastern Texas in Marshall to dismiss the copyright infringement complaint brought Dec. 7 by 54 record labels and music publishers (see 2312080050). The complaint alleges that Altice has knowingly contributed to, and reaped “substantial profits” from, massive copyright infringement committed by thousands of its internet subscribers.

The recording industry’s “basic theory” is that if an ISP like Altice receives allegations that someone has used a home or business internet connection to exchange infringing music files, the ISP “must thwart any potential future infringement by throwing the entire home or business off of the internet, or pay massive damages,” said Altice’s motion. It’s “a startling notion,” it said.

Holding a “passive infrastructure provider” liable for bad acts committed “over its wires” flouts traditional limits on secondary liability, said Altice’s motion. But some district courts, including the Eastern District of Texas in another case against Altice brought by BMG (see 2212150019), “have allowed the labels’ theory to survive the motion to dismiss stage,” it said. So the labels bring another complaint “seeking another astronomical payday,” it said.

The U.S. Supreme Court has “unanimously rejected” the labels’ theory, said the motion. SCOTUS, in its May 18 decision in Twitter v. Taamneh (see 2305180049), “barred an attempt to hold online social media platforms liable for aiding and abetting the misdeeds of users,” it said. Recent SCOTUS decisions “establish that a defendant’s continued provision of infrastructure to a known tortfeasor is no basis for liability” unless the defendant consciously, voluntarily and culpably participated in or supported the relevant wrongdoing, it said. That “dooms” the plaintiffs’ case, it said.

The plaintiffs’ claims fail because the complaint doesn’t adequately allege “instances of direct infringement,” said the motion. That’s a necessary “predicate” for contributory and vicarious liability, it said. The complaint also contains no factual allegations of alleged instances of infringing downloads using an Altice internet connection, it said. Its allegations of infringing uploads also “are legally deficient,” it said. They establish “at most” that Altice users “have made infringing works available to others, not that those users actually disseminated works, as the law requires,” it said.

The plaintiffs’ “threadbare” allegations about Altice’s purported knowledge of the infringing activity are “legally inadequate,” said the motion. Those allegations rest on the “implausible notion” that if any internet connection was allegedly used more than once to infringe, Altice knows that the connection “will be so used again, and must immediately terminate it,” it said.

The plaintiffs’ vicarious infringement claims also fail, said the motion. Those claims “boil down to the contention” that some of Altice’s users seemingly like to infringe, and that Altice “has the right to terminate them for doing so,” it said. If this were enough, the plaintiffs’ approach “would render ISPs vicariously responsible for virtually every bad act one of its users does on the internet,” it said. It’s therefore “unsurprising” that the plaintiffs fail to state a claim, it said.

The plaintiffs can’t establish Altice’s ability to supervise and control user activity because Altice can’t monitor users, “and does nothing but provide a passive conduit to online locations outside of Altice’s control,” said the motion. The plaintiffs also fail “to plead a direct financial benefit to Altice from infringement” because they don’t plausibly allege that Altice would lose subscribers if users couldn’t infringe the plaintiffs’ works on Altice’s network, it said.