Grande face new US claim in wake of Cox ruling

September 2017

Internet, recorded music


US internet service provider Grande Communications is fighting back against the action iy faces which was commenced by the Recording Industry Association of America (RIAA).


Earlier this year, the RIAA sued the Texas internet service provider claiming that “Despite their knowledge of repeat infringements, defendants have permitted repeat infringers to use the Grande service to continue to infringe plaintiffs’ copyrights without consequence”.


The move comes in the wake of the recent ruling in the dispute between music rights firm BMG and internet service provider Cox Communications, in which the court found that internet service provider Cox was liable for the copyright infringement of its customers.  The judge held this because Cox Communications operated a (deliberately) poor system for dealing with copyright infringing customers, Cox could not rely on the safe harbour defence in US law.


Now the RIAA is looking to have Grande Communications held liable for the copyright infringement of its customers. The RIAA plans to do this on the basis that Grande Communications isn’t doing enough to deal with said infringers, and therefore will not be able to rely on the safe harbour defence. In 2014 Cox was accused of repeatedly refusing “to terminate the accounts of repeat infringers“and that ”The reason that Cox does not terminate these subscribers and account holders is obvious – it would cause Cox to lose revenue.”  


Cox Communications were ordered to pay a $25 million dollar penalty for copyright infringements by a federal judge, following the earlier jury decision which found Cox liable for illegal movie and music downloads by its customers. why? Well the company’s behaviour amounted to wilful infringement of copyright in the eyes of the jury. The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay up and at the time commentators said that the ruling was likely to have widespread repercussions for online copyright infringement in the US and where a internet service provider might fail to qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. The RIAA say that Grabde was “refusing to take meaningful action” against users who repeatedly download music illegally.


Unsurprisingly, Grande Communications doesn’t like the sound of this latest claim. It is arguing that whilst the labels have sent the internet service provider a number of takedown notices (well the anti-piracy agency Rightscorp has) for alleged copyright infringement, the take down notices themselves users of its network have been partaking in copyright infringement.


It has been reported that lawyers for Grande Communications said “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”.


Grande Communications is also not happy with the fact the RIAA has referred to all of the takedown notices that Rightscorp has issued to the ISP, rather than the specific takedown notices from the specific recordings from labels that the RIAA represents. Grande Communications has stated that “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”.  However, the RIAA is maintaining that the evidence it provided is enough to exemplify the fact that Grande Communications has not been in line with its safe harbour obligations, and it should therefore be liable for its customers’ copyright infringement.


Grande Communications is arguing that if the RIAA is successful it may set a dangerous precedent, putting a huge burden on internet service providers.


By Samuel O’Toole

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