Verizon Asks Court to Dismiss Music Labels’ Piracy Liability Lawsuit

In recent years, music and movie companies have filed several lawsuits against U.S. Internet providers based on allegations that they failed to take action against pirating subscribers.

One of the main arguments is that the DMCA requires providers to terminate the accounts of repeat infringers in ‘appropriate circumstances’.

These lawsuits have resulted in multi-million dollar windfalls in favor of rightsholders. Most notable is the ‘$1 billion damages award a jury awarded in favor of several music companies. The matter is currently under appeal by Cox, which took the matter to the U.S. Supreme Court as well.

Music Companies Sue Verizon

This summer, dozens of record labels, assisted by the RIAA, filed a new copyright infringement lawsuit targeting Verizon. The complaint accuses the ISP of failing to take action in response to piracy notices.

“[I]t has intentionally chosen not to listen to complaints from copyright owners. Instead of taking action in response to those infringement notices as the law requires, Verizon ignored Plaintiffs’ notices and buried its head in the sand,” the labels wrote.

At a New York federal court, the music companies alleged that Verizon is contributorily and vicariously liable for the copyright infringements of its subscribers. As a result, the ISP faces damages of multiple millions of dollars.

Verizon: Yes, We Ignored Piracy Notices

This week, Verizon responded to the allegations with a motion to dismiss. The company vehemently disagrees that it’s liable for the actions of subscribers who allegedly pirated music.

“When people do bad things online, their internet service providers are not typically the ones to blame. This lawsuit claims otherwise,” Verizon begins.

The company notes that, instead of going after the alleged pirates directly, the music companies choose to target an Internet access provider whose network was used to carry out the alleged infringements.

Verizon admits that the labels sent hundreds of thousands of emails, alerting the company about the alleged infringements. However, it doesn’t believe that its choice not to disconnect subscribers makes it liable for the alleged infringements.

“For years, the Labels have sought to pin the alleged infringement on Verizon by sending Verizon more than 340,000 automated emails about it. Those emails demanded that Verizon find the infringers, and either make them stop or kick them off the internet.

“And in response to this barrage of emails, Verizon allegedly did nothing. Because Verizon did not obey these emailed demands to find and stop the infringers, the complaint alleges, Verizon is now secondarily liable for what they did,” the motion adds.

Verizon readily admits that it didn’t act in response to the barrage of piracy complaints. That may seem an odd element to highlight but, according to the ISP, that inaction ultimately works in its favor.

Piracy Liability Claims Fail, Should be Dismissed

The music companies accuse Verizon of contributory and vicarious copyright infringement. According to Verizon, both claims are deficient and, therefore, the entire complaint should be dismissed.

To properly argue contributory copyright infringement, a defendant should be aware of the wrongdoing and have contributed to it. While Verizon did indeed know about the alleged music piracy, it argues that it didn’t ‘contribute’ to it.

“Verizon’s mere failure to cut off subscribers’ internet access – no matter how many emails asked it to – did not materially contribute to their infringement,” the company writes.

The music companies argue that the ISP ‘actively’ continued to provide alleged pirates with internet access. However, Verizon stresses that it ignored the notices, as mentioned earlier, which clearly indicates ‘inaction’.

“[T]he Labels try to obscure that defect with wordplay, reframing Verizon’s conduct as actively ‘continuing to provide its service’ to infringing accounts. But their rhetoric cannot change that, by allegedly ignoring the Labels’ emails, Verizon simply did not act,” the motion reads.

Verizon finds support in a recent Twitter vs. Taamneh ruling, where the Supreme Court rejected the claim that Twitter aided-and-abetted terrorist activity because it didn’t “consciously and culpably” participate in the illegal activity.

According to Verizon, the same logic applies in its case, where the ISP was held liable for the piracy activities of subscribers, without taking any culpable action.

“Under the common law, a communication provider’s conscious refusal to eject wrongdoers from its service is ‘mere passive nonfeasance’ that does not culpably aid their wrongdoing. That holding is decisive here.”

In addition, Verizon argues that the vicarious copyright infringement claim fails because the company neither controlled nor profited from the allegedly pirating subscribers.

The Fourth Circuit recently rejected a similar claim against Cox, ruling that an ISPs interest in generating revenue does not automatically mean that it’s profiting from piracy. The same should hold here, Verizon concludes.

‘Time to End These Lucrative Piracy Lawsuits’

Thus far, the music companies and other rightsholders have often been on the winning side of these cases. However, Verizon believes that the Supreme Court’s recent ruling in the Twitter case has changed this playbook.

In recent years, the labels obtained a “lucrative” $1 billion judgment against Cox and extracted settlements from several others based on the premise that ignoring piracy notices triggers a culpable action. That was wrong, Verizon notes.

“[T]he decisions blessing those lawsuits were wrong then and are even less persuasive now. Indeed, they all rest on the same faulty common-law premise – one imputing culpable intent from passive inaction – that misreads copyright doctrine and conflicts with Twitter.

“As the first district court to consider the issue after Twitter, this Court now has the chance to reject the premise. It should do so. The complaint should be dismissed,” Verizon adds.

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A copy of Verizon’s motion to dismiss, filed at the New York federal court, is available here (pdf)

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