Charter Com. says labels’ vicarious infringement claim will “open the floodgates”

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US internet service provider Charter Communications has told a court that if it is held liable for vicarious infringement simply because it advertised its high net speeds, the floodgates will be opened for a flurry of copyright claims against all internet providers.

Charter is one of the ISPs fighting a copyright infringement lawsuit filed by the Recording Industry Association Of America.

These legal battles follow the landmark ruling in the BMG v Cox Communications case, in which a court decided that Cox could not rely on safe harbour protection under US copyright law because it had a deliberately shoddy system for dealing with repeat infringers. That meant Cox could be held liable for its users unlicensed distribution of BMG’s songs.

The RIAA is now suing Cox, Charter and Grande Communications, and although all three ISPs have fought back, things have mainly been going in the labels’ favour as all three cases have worked their way through the motions.

One element of those cases is whether the ISPs should be held liable for vicarious as well as contributory infringement. If so, the labels could secure higher damages.

Grande successfully had the vicarious infringement claim dismissed from its case and Charter is trying to do likewise. But last month a magistrate judge who had considered the dispute recommended allowing both infringement claims to continue, for now at least.

One of the things you need to demonstrate to prove vicarious infringement is that the ISP received a direct benefit from the infringing activity.

The labels have argued that the net firms do benefit from the piracy they enable because users who regularly access music from piracy platforms and file-sharing networks are more likely to be attracted to the premium high bandwidth products companies like Charter sell. They then noted how Charter had promoted its “blazing-fast speeds” that allow users to “download just about anything instantly”.

However, in a legal filing last week, Charter sought to convince the federal judge that his colleague’s conclusion on this matter was simply wrong.

It noted: “By relaxing the direct financial benefit prong to something far more attenuated than what is required, the [magistrate judge] threatens to open the floodgates for massive liability against ISPs for merely advertising and making available high speed internet to the general public”.

It then added: “Plaintiffs’ complaint is bereft of any specific allegations that users were drawn to Charter’s services to infringe plaintiffs’ copyrights, as opposed to efficiently access the internet, including to access music generally, which of course, users can do lawfully. This renders any financial benefit from any alleged infringement incidental, not direct, and thus insufficient as a matter of law to satisfy the financial benefit prong of vicarious liability”.

It remains to be seen how the federal judge in the case rules next and, indeed, whether any floodgates are indeed opened as a result.