In 2017 the RIAA sued Grande Communications for failing to take meaningful action against customers who allegedly carried out more than a million BitTorrent-based infringements.
Now it’s the turn of more than two dozen movie companies to launch a legal attack against Grande on a similar basis, this time for the alleged downloading and sharing of movies including Angel Has Fallen, Extremely Wicked, Shockingly Vile and Evil, Hellboy, Rambo V: Last Blood, The HItman’s Bodyguard, and Dallas Buyer’s Club.
The list of plaintiffs contains names already familiar with filing individual lawsuits against lone sharers including movie companies Voltage Holdings, Millienniun Media, and LHF Productions.
The Lawsuit Against Grande
Filed in a Texas court late Friday, the complaint states that the plaintiffs are producers of motion pictures available for purchase both online and in physical stores. However, massive piracy of these titles on the Internet by people using BitTorrent undermines that effort, especially when ISPs like Grande fail to take action against them.
“Defendant promotes its service to download and upload large amounts of content for subscribers for ‘downloading music, streaming movies and gaming’, the complaint reads, adding that Grande charges customers based on speed of service.
According to the movie companies, Grande knew that its customers used its service to routinely download and upload their copyrights work in breach of copyright. The complaint alleges that the plaintiffs sent more than 5,800 DMCA notices to the ISP’s abuse department, which included IP address, port numbers, and times of infringement. In response, Grande “turned a blind eye” to the massive infringement.
“Defendant allowed the illegal activity because it was popular with subscribers and acted as a draw to attract and retain new and existing subscribers. Defendant’s subscribers, in turn, purchased more bandwidth and continued using Defendant’s services to infringe Plaintiffs’ Works,” it reads.
“Defendant knew that if it terminated or otherwise prevented repeat infringer subscribers from using its service to infringe, or made it less attractive for such use, Defendant would enroll fewer new subscribers, lose existing subscribers, and ultimately lose revenue.”
Tracking Evidence Supplied by Maverickeye and Torrent Giant YTS
Maverickeye is well known in multiple regions for providing evidence in smaller cases against individuals who allegedly shared content illegally using BitTorrent. In this case, the company logged the activities of a user behind IP address 66.196.3.46, concluding that the Grande customer shared an Angel Has Fallen torrent multiple times on November 26, 2021.
To support this claim, the movie companies turn to evidence handed to them as part of a settlement deal with the operator of the YTS torrent site. According to the complaint, the operator of YTS kept activity records of users who had an account there, including all of the torrent files downloaded, the IP address from where the account was accessed, plus relevant times.
The Grande subscriber behind 66.196.3.46 allegedly distributed multiple copies of the movies After, Hellboy and Angel Has Fallen. Another user, behind the IP address 24.155.189.11, reportedly distributed thousands of copies of Rambo V: Last Blood.
In response to these and other infringements, agents for the movie companies sent more than 5,800 copyright infringement notices to Grande Communications including 1,000 notices relating to The Hitman’s Bodyguard, 500 for I Feel Pretty and Hellboy, 450 notices for Angel Has Fallen, and 350 notices for Rambo V: Last Blood.
Grande Failed to Terminate User Accounts
According to the complaint, Grande is required to take “meaningful action” against subscribers in response to these notices, up to and including terminating their accounts. But in some cases, Grande even failed to pass the notices on to their customers.
“Defendant continued to provide service to the subscribers despite knowledge that its subscribers were using the service to engage and facilitate massive piracy of copyright protected Works including the Copyright Plaintiffs’,” the movie companies write.
In October 2020, counsel for the plaintiffs wrote a letter to Grande detailing their concerns while highlighting some examples of “prolific piracy behavior” by some of its subscribers. The letter stated that many of Grande’s customers used the YTS torrent site to repeatedly infringe copyrights but despite being informed of this and similar acts carried out by more than 2,500 subscribers, Grande failed to terminate repeat infringers.
Indeed, the letter shows a sample five IP addresses that were reported to Grande between 56 and 80 times each for copyright infringement, apparently without any action being taken against those customers.
The letter further went on to warn Grande that since it fails to terminate repeat infringers, it does not qualify for the safe harbor provisions of the DMCA. This led to the conclusion that Grande could be held secondarily liable for any infringements carried out by its subscribers to the tune of $150,000 in statutory damages for each motion picture, $25,000 per DMCA violation, plus costs and attorney’s fees.
Grande Was Given The Chance To Avoid a Lawsuit
The letter, sent by IP lawyer Kerry Culpepper, offered Grande a chance to address the movie companies’ grievances without litigation by terminating all subscriber accounts that had received more than three DMCA notices against them, and agreeing to terminate any accounts reported in the future for infringement.
The movie companies also demanded access to Grande’s subscriber database to obtain the identities of subscribers behind IP addresses identified as infringers. Finally, the letter demanded that Grande should block torrent sites YTS, 1337x and The Pirate Bay, including their proxies.
According to the complaint, Grande “completely ignored the letter” and continued to provide service, even to subscribers identified as prolific infringers.
Plaintiffs’ Legal Conclusions, Demands
In summary, the complaint alleges that Grande’s failure to implement a repeat infringer policy motivated internet users to become subscribers so, as a result, Grande cannot rely on the safe harbor provisions of the DMCA.
According to the plaintiffs, this means Grande is liable as a contributory copyright infringer for the infringing acts of its subscribers. And, since it had actual and constructive knowledge of the infringing activity and knowingly contributed to it, any infringement was willful.
As a result, the movie companies demand an injunction to prevent the ongoing infringement of their copyright works and an order compelling Grande to suspend the accounts of any customer who receives three unique DMCA notices in 72 hours.
They also ask the court to issue an order that requires Grande to block subscribers from accessing all “websites of foreign origin” that are listed in the USTR’s ‘notorious markets‘ report.
In addition to what could be a huge multi-million dollar damages award, the movie companies also want the court to order Grande to disclose the identities of subscribers who use its service to infringe copyrights.
Late July, a broadly similar lawsuit was filed by the same movies companies against ISP WOW!
The complaint in the Grande matter can be found here (pdf), supporting documents here 1,2,3 (pdf)
