Record industry’s copyright battle with American ISP allowed to continue

[Len]

The big copyright dispute between the American record industry and internet service provider Grande Communications will proceed as planned after a judge refused to dismiss the case. Though neither side are that happy with the new ruling.

This is the latest case Stateside testing the limits of that pesky safe harbour that the record labels love so much. With close parallels to the big BMG v Cox Communications legal battle, the Recording Industry Association Of America says that Grande has failed to deal with repeat copyright infringers among its customer base.

The record companies argue that this failure means that the internet company should no longer qualify for safe harbour protection under US copyright law. Which means it could be held liable for the copyright infringement of its customers.

More precisely, it should be liable for both contributory and vicarious infringement, reckons the RIAA. And not only should Grande be held liable for the actions of its copyright infringing customers, so should its parent company. But the judge hearing the case, Lee Yeakel, doesn’t agree with all of that.

Endorsing an earlier recommendation made by a magistrate judge last month, he says that the parent company shouldn’t be a defendant in this case, and that only claims of contributory infringement should be fully considered by the court, the vicarious infringement claim being dropped from the proceedings.

Although Yeakel has cut the litigation down a little, the core case will now proceed. Grande wanted the whole case dismissed, basically on the grounds that the RIAA accuses it of ignoring repeat infringement notifications against certain Grande customers from anti-piracy agency Rightscorp. Those notifications constitute allegations of piracy rather than evidence, the ISP argues, so it shouldn’t have been obliged to act on them.

That argument was insufficient to have the case dismissed, reckoned Yeakel, who endorsed the earlier magistrate judge recommendation that, although this is “not yet a well-defined area of the law … the court is persuaded that [record industry] has pled a plausible claim of [contributory] infringement based on Grande’s alleged failure to act when presented with evidence of ongoing, pervasive infringement by its subscribers”.

So, let the litigation continue, says Yeakel. BMG’s victory in its legal action against Cox, which motivated this case, was overturned in February, of course. Although on a technicality. And the RIAA reckons that remarks made by the judge who overturned that ruling actually help it in its case against Grande.

It wrote in a recent legal filing that that ruling “affirmed the holdings … that [we] rely on here, and expressly rejected the central arguments [Grande] advance in their motions to dismiss”.