Over the past two decades, online piracy has proven to be a daunting challenge for the entertainment industries.
Some copyright owners have attempted to prosecute individual pirates in court, but increasingly third-party intermediaries are also being targeted.
There are several pending lawsuits in U.S. courts, where rights holders have accused ISPs of not doing enough to stop the piracy. One of the main allegations is that ISPs fail to terminate the accounts of repeat offenders under “appropriate circumstances” as required by the DMCA.
These lawsuits were initiated by music companies, which have had some success on this front, including a billion dollar verdict against Cox. More recently, however, a group of filmmakers have adopted a similar strategy. These companies have already sued several Internet service providers, including Wow !.
Filmmakers are suing WoW!
Wow! is pursued by a group of smaller film companies, including Millennium Media and Voltage Pictures, which have amassed an impressive track record in combating piracy in recent years. They preyed on individual hackers and targeted various hacker sites including the YTS torrent index.
The filmmakers are now accusing the ISP of failing to shut down the accounts of subscribers who have been repeatedly accused of sharing copyrighted material. As such, they hold Wow! responsible for these hacking activities, which could result in millions of dollars in damages.
Wow! clearly disagrees with these accusations. In a motion to dismiss filed this week, the ISP refutes the claim that it is directly, contributory, or even indirectly responsible for alleged subscribers’ copyright infringements.
Motion to dismiss
According to Whoa! The evidence provided by the anti-piracy partner of the film companies Maverickeye does not prove any direct infringement. An IP address is not sufficient to prove that subscribers downloaded counterfeit material, says the ISP, pointing to the “Cobbler” case.
Moreover, secondary liability claims also fail, as the filmmakers cannot show that Wow! financially benefited from the hacking activity. Wow! charges a fixed fee for its internet service, which is the same whether or not subscribers hack.
“[T]The complaint lacks plausible allegations detailing how WOW directly benefited from the alleged infringement, making any financial benefit from the alleged infringement mitigated or incidental, and not “direct”, ”the motion to dismiss.
Wow! further argues that there is no evidence that its Internet service was particularly attractive to hackers. Finally, the ISP notes that it simply could not control or supervise the alleged infringements, which is also necessary to prove liability.
Wow! Hundreds of disconnected subscribers
These and other arguments will be considered by the court, which will ultimately decide whether this case can go ahead. Many of the defense arguments are consistent with what we have seen in previous cases, but there are also important differences.
For example, Wow! emphasizes that he is not ignoring piracy. In recent years, the company has closed the accounts of hundreds of subscribers for which it has received several notices of copyright infringement.
“WOW has a strong program where it notifies account holders of infringement allegations, suspends their Internet access if the allegations continue, and then permanently terminates the account upon receipt of additional complaints.”
In addition to this, the ISP also presents the defendants, its anti-piracy partners and the evidence in a different light.
Trolls, a vicious person and strange journals
Wow’s dismissal motion! calls the filmmakers and their anti-piracy partner Maverickeye copyright trolls. These entities have already sued individual file sharers in various courts for easy settlements.
“The plaintiffs and Maverickeye are part of a well-known network of copyright trolls. So far, the plaintiffs’ modus operandi has been to sue John Doe in the hope of securing swift settlements and dismissing them at the slightest resistance.
The FAI also reports several lawsuits in which Mavericeye has been charged with a wide variety of wrongdoing, including using the expert testimony of a fictitious person.
“In addition, the courts and litigants in these cases have convincingly accused Maverickeye of serious wrongdoing, such as the submission of fraudulent ‘expert’ statements by fictitious persons, violation of state law in engaging in unlicensed surveillance and even conspiring with copyright owners to deliver copyrighted content on BitTorrent. then sue whoever tries to download it.
These claims will have to be tested in court, but it is clear that Wow! is ready to ask tough questions. This also applies to the “testimony” of YTS owner Senthil Segaran, which the filmmakers used as evidence.
The site operator provided information from YTS’s user logs and database as part of an earlier settlement with the filmmakers. However, Wow! is not immediately convinced that this information is credible.
Anyway, Wow! considers that the complaint should be dismissed in its entirety. Whatever the court decision, this case will be interesting to follow, as the stakes are high.
Besides millions of dollars in potential piracy damage, the filmmakers want Wow! block various pirate sites and disconnect subscribers whose accounts are affected by three unique infringement notices within three days.
A copy of Wow! ‘S motion to dismiss, filed in the U.S. District Court for the District of Colorado, is available here (pdf)