Under US copyright law, Internet service providers must terminate the accounts of repeat offenders “in appropriate circumstances.”
In the past, such drastic action was rare, but, supported by several court orders, ISPs are increasingly held to this standard.
Music companies sued RCN
Internet service provider RCN is also under legal pressure. Two years ago, the company was sued by several large companies in the music industry, including Arista Records, Sony Music Entertainment, Universal Music, and Warner Records.
The music companies alleged that RCN was not doing enough to prevent subscribers from hacking into its network. Instead of terminating the persistent hacker accounts, the ISP looked away, they argued.
The stakes in these liability lawsuits are high. Internet service 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 notice”
To avoid trouble, several ISPs launched counterattacks in court. This includes RCN, which accused the RIAA and its anti-piracy partner of sending “bogus and fraudulent” DMCA notices. These notices should not be used as proof of disconnection.
This counter-pursuit was initially unsuccessful. A New Jersey federal government concluded that RCN had failed to demonstrate that it suffered financial harm as a direct result of incorrect notices. However, the court left the door open to more detailed allegations.
Amended counter prosecution
A month later, the ISP filed updated complaints against the RIAA and Rightscorp. As requested, these included more details on how the allegedly bogus and fraudulent reviews caused the company to incur additional costs.
For example, RCN mentioned that it needs to hire outside lawyers to analyze Rightscorp’s complaints. This includes Rightscorp’s refusal to add a digital signature to its DMCA notices.
Additionally, the ISP argued that it needed to devote additional resources to modifying and maintaining its DMCA opt-out system, in order to be able to handle Rightscorp’s “non-compliant” hack notices.
To make an appropriate claim under the California Unfair Competition Act (UCL), there must be some form of harm that can be directly related to the alleged fraud. While the updated allegations are indeed more detailed, the RIAA and Rightscorp believe they are still lacking.
RIAA denies any involvement
In a new file filed with the court, the RIAA stresses that the new claims still show no direct and substantial damage. Additionally, the organization notes that even if it did, it is not responsible.
The disputed notices were sent by Rightscorp who acted on behalf of the record companies, not the RIAA.
‘[I]There is no question that Rightscorp has never sent an infringement notice on behalf of Movants. Indeed, RCN concedes that Movants never hired Rightscorp to monitor BitTorrent or send notifications on their behalf.
“Thus, Movants did not personally participate in the practices of Rightscorp and clearly lacked absolute control over them in law,” adds the RIAA.
Rightscorp says RCN is responsible for additional costs
Rightscorp cannot deny its involvement, but the anti-piracy group is also asking the court to dismiss the allegations. Among other things, the company argues that RCN does not demonstrate that it incurred additional costs directly linked to the contested opinions.
While RCN may have hired a lawyer to review Rightscorp’s opinions, that would be no different than analyzing copyright infringement complaints from other parties, Rightscorp says.
Additionally, any additional costs incurred by Rightscorp’s refusal to digitally sign its hack notices are RCN’s own responsibility, as the ISP itself has proposed this requirement.
“[T]his alleged 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 license
RCN also alleged that Rightscorp does not have a private investigator license, even though it acts as such. Tracking suspected unlicensed hackers violates laws in California and New Jersey, the ISP said.
In its motion to dismiss, Rightscorp admits that it operates without a license. However, the company does not think it needs it and calls RCN’s request a “pretextual blow”.
Even though a license was required, Rightscorp does not see how this caused financial damage to RCN.
“Assuming, for the sake of argument, that Rightscorp needed a private investigator’s license, RCN’s amended counterclaim did not allege economic harm caused by Rightscorp’s refusal to obtain one. “retorts Rightscorp.
The above is only a small selection of the arguments and claims advanced by all parties.
Once all parties have been heard, it is now up to the tribunal to determine whether RCN’s amended complaint can go ahead or will be dismissed.
A copy of the RIAA’s motion to dismiss, filed in the Federal Court of New Jersey, is available here (pdf) and Rightscorp’s motion can be viewed here (pdf)