US ISP says record industry safe harbour case doesn’t prove any actual infringement

[grimm]

A US internet service provider is pushing back against a copyright action launched by the Recording Industry Association Of America, arguing that the trade group hasn’t provided sufficient evidence of copyright infringement for the case to proceed.

As previously reported, the RIAA sued net firm Grande Communications earlier this year. The labels group is capitalising on the landmark ruling in the dispute between music rights firm BMG and ISP Cox Communications, in which the latter was held liable for the copyright infringement of its customers because of evidence it operated a deliberately shoddy system for dealing with repeat infringers amongst its user base. That fact, the court ruled, means Cox was no longer protected by the often controversial copyright safe harbour.

The RIAA likewise wants Grande Communications held liable for the infringement of its users on the basis it hasn’t done enough to deal with repeat infringers.

But the ISP has been fighting back by arguing that, while the record labels have definitely been sending the net firm a steady stream of takedown notices in relation to alleged copyright infringement on its network – mainly via anti-piracy agency Rightscorp – that isn’t in itself evidence of said infringement. And the record companies must prove users have been infringing specific recordings in order to hold Grande liable.

According to Torrentfreak, in a recent legal filing in relation to the case, lawyers for Grande stated that: “Importantly, plaintiffs do not allege that Rightscorp has ever recorded an instance of a Grande subscriber actually distributing even one of plaintiffs’ copyrighted works. Plaintiffs certainly have not alleged any concrete facts regarding such an act. Plaintiffs cannot allege direct infringement without alleging concrete facts which show that a Grande subscriber actually infringed one of plaintiffs’ copyrights”.

The ISP also takes issue with the RIAA referring to all of the takedown notices issued to Grande by Rightscorp, rather than specific takedowns in relation to specific recordings controlled by labels repped by the RIAA in the case. “It is incredibly misleading for plaintiffs to repeatedly refer to Grande having received ‘millions’ of notices of alleged infringement” says the ISP, “as if those notices all pertained to plaintiffs’ asserted copyrights”.

The RIAA maintains the evidence it has provided is sufficient to prove the ISP has not been fulfilling its obligations under the safe harbour, and therefore should be held liable for its customers’ infringing activity. Grande also argues that – if it is found liable – that would set a dangerous precedent and put an unreasonably onerous obligation on all ISPs, though similar things were said in the Cox case and BMG still won at first instance.