Recording Industry Plaintiffs Step Up Opposition to Altice Motion to Dismiss

Altice’s March 19 reply in support of its motion to dismiss the contributory copyright infringement complaint brought by 54 record labels and music publishers (see 2312080050) repeats “two fundamental errors” from its opening brief that are “fatal to its motion,” said the recording industry’s surreply Tuesday (docket 2:23-cv-00576) in U.S. District Court for Eastern Texas in Marshall in opposition to the motion to dismiss.

The labels and publishers allege that Altice has knowingly contributed to, and reaped “substantial profits” from, massive copyright infringement committed by thousands of its internet subscribers (see 2312080050). The defendant has been fending off similar allegations from BMG and its affiliates in the same courthouse in a case that dates to December 2022 (see 2212150019).

Altice’s reply “does nothing” to address the same court’s rejection of the company’s nearly identical arguments in the May 12 decision denying its motion to dismiss the BMG action, said the surreply. Altice also applies a “heightened legal standard” to sustain a claim “akin to that at summary judgment or even trial, rather than the Rule 12(b)(6) standard,” it said.

The two cases that Altice principally relies on betray “each of these flaws,” said the surreply. The first case, Twitter v. Taamneh, doesn’t involve copyright infringement at all and doesn’t “counsel revisiting” the court’s decision denying Altice’s motion to dismiss the BMG case, it said. The 4th Circuit’s March 19 decision in the second case, Sony Music Entertainment v. Cox Communications, rejecting Cox’s en banc petition’s argument that the panel should have applied Twitter (see 2402210027), “just made that clear,” it said.

Contrary to Altice’s argument, Sony v. Cox has “no impact” on the 54 plaintiffs’ vicarious liability claims “because it addressed the adequacy of evidence introduced at trial, not the adequacy of a complaint’s allegations,” said the surreply. In that “same vein,” the defendant's arguments about direct infringement “offer Altice’s own version of the facts, a version that is both implausible and irrelevant on a motion to dismiss,” it said.

Altice’s reply “magnifies, rather than corrects, the errors of its opening brief,” said the surreply. The court should deny the company’s motion to dismiss in full, it said.