Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”
In the past such drastic action was rare but, backed by several court orders, ISPs are increasingly being held to this standard.
Music Companies sued RCN
Internet provider RCN is also under legal pressure. Two years ago, the company was sued by several major music industry companies including Arista Records, Sony Music Entertainment, Universal Music, and Warner Records.
The music companies alleged that RCN wasn’t doing enough to stop subscribers from pirating on its network. Instead of terminating accounts of persistent pirates, the Internet provider looked away, they argued.
The stakes of these liability lawsuits are high. Internet providers face hundreds of millions of dollars in damages claims, while tens of thousands of Internet subscribers are at risk of having their accounts terminated.
“False and Fraudulent Notices”
To avoid trouble, several ISPs have launched counterattacks in court. This includes RCN, which accused the RIAA and its anti-piracy partner of sending ‘false and fraudulent’ DMCA notices. These notices shouldn’t serve as evidence for disconnections.
This countersuit initially failed. A New Jersey federal concluded that RCN failed to show that it was financially hurt as a direct result of any incorrect notices. However, the court left the door open for more detailed allegations.
Amended Countersuit
A month later, the ISP filed updated complaints against the RIAA and Rightscorp. As requested, these included more details on how the alleged false and fraudulent notices required the company to make additional costs.
For example, RCN mentioned that it has to hire outside attorneys to analyze Rightscorp’s complaints. This includes Rightscorp’s refusal to add a digital signature to its DMCA notices.
In addition, the ISP argued that it had to spend extra resources on modifying and maintaining its DMCA takedown system, so it could handle Rightscorp’s “non-compliant” piracy notices.
To state a proper claim under the California Unfair Competition Law (UCL), there has to be some form of injury that can be directly linked to the alleged fraud. While the updated allegations are indeed more detailed, both the RIAA and Rightscorp believe that they’re still lacking.
RIAA Denies Involvement
In a new filing to the court, RIAA stresses that the new claims still fail to show any direct and substantial injury. In addition, the organization notes that, even if that was the case, it’s not responsible.
The contested notices were sent by Rightscorp who acted on behalf of record labels, not the RIAA.
‘[I]t is beyond dispute that Rightscorp never sent infringement notices on behalf of Movants. Indeed, RCN concedes that Movants have never hired Rightscorp to monitor BitTorrent or send notices on their behalf.
“Thus, Movants did not personally participate in Rightscorp’s practices and plainly lacked unbridled control over them as a matter of law,” the RIAA adds.
Rightscorp Says RCN is Responsible for Extra Costs
Rightscorp can’t possibly deny its involvement but the anti-piracy group also asks the court to dismiss the allegations. Among other things, the company argues that RCN fails to show that it made extra costs that are directly related to the contested notices.
While RCN may have hired an attorney to review Rightscorp’s notices, that wouldn’t be any different than analyzing copyright infringement complaints from other parties, Rightscorp argues.
Also, any extra costs that were made in relation to Rightscorp’s refusal to digitally sign its piracy notices are RCN’s own responsibility, since the ISP itself came up with this requirement.
“[T]his purported injury is the result of RCN’s decision to impose its own formatting requirement, which is not required or even suggested by the DMCA,” Rightscorp writes.
No Private Investigator’s License
RCN also alleged that Rightscorp doesn’t have a private investigator’s license, even though it acts like one. Tracking alleged pirates without a license violates California and New Jersey law, the Internet provider said.
In its motion to dismiss Rightscorp admits that it operates without a license. However, the company doesn’t believe it needs one and it characterizes RCN’s claim as a “pretextual jab.”
Even if a license would be required, Rightscorp fails to see how this caused financial damage to RCN.
“Assuming for the sake of argument that Rightscorp needed a private investigator license, RCN’s amended countercomplaint has failed to allege an economic injury caused by Rightscorp’s declination to obtain one,” Rightscorp counter.
The above is just a small selection of the arguments and claims made by all parties.
After all sides were heard, it is now up to the court to determine whether RCN’s amended complaint can move forward or will be dismissed.
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A copy of RIAA’s motion to dismiss, filed at the New Jersey federal court, is available here (pdf) and Rightscorp’s motion can be found here (pdf)
