Altice Gave Users 'Unfettered Ability' to Steal Music, Says BMG Filing

Altice ignored BMG’s numerous allegations of material contribution to copyright infringement by its customers in its motion to dismiss, and its reference to the importance of internet service during the COVID-19 pandemic has no bearing on its effort to dismiss BMG’s claim for vicarious liability, said plaintiffs’ response (docket 2:22-cv-00471) in opposition to the motion filed Monday in U.S. District Court for Eastern Texas in Marshall.

The internet service provider received specific and detailed notice that its subscribers were using its services to infringe copyrighted music “on a massive scale,” said plaintiffs BMG Rights Management, UMG Recordings, Capitol Records, Concord Music Group and Concord Bicycle Assets. Rather than act to prevent it, Altice chose to give subscribers “unfettered ability to steal” their copyrighted music online, said the response.

Altice “fostered that infringement and profited from it,” said the response. An entity that induces, causes or materially contributes to infringement that it knows about faces “contributory” liability, it said. The complaint states two claims for copyright infringement, for vicarious liability and contributory liability. Altice moved to dismiss both claims in February, calling the lawsuit an attempt by the music industry to “engineer a copyright-liability regime” that makes ISPs responsible for all infringement that takes place on the internet, turning service providers into “their de facto enforcers.”

Plaintiffs couldn't allege that Altice developed or provides the peer-to-peer (P2P) file transfer technology used to infringe or that it maintains a P2P platform or website, the ISP’s motion said. They couldn’t allege Altice stores or hosts infringing materials, that an internet connection offers a unique ability to transfer music files, “or that Altice could block access to such files,” it said.

Copyright’s secondary liability doctrines don’t allow for mass infringement suits against ISPs, Altice said, saying doctrines of vicarious liability and contributory infringement “inherently limit when a defendant can be held liable for another’s conduct.” Altice referenced Sony v. Universal City Studios, saying, “Copyright law has long refused to impose liability on providers of products or services that can be used for a multitude of lawful ends, even if some use them to infringe.”

Plaintiffs responded that Altice retained broad rights “to discipline” its customers, “including with temporary interruptions or suspensions of service and even outright termination.” The ISP has sophisticated mechanisms to detect subscribers’ abuse and has the “right to stop or limit” it, plaintiffs said, noting Metro-Goldwyn-Mayer Studios v. Grokster. Altice already implemented measures by which it can prevent infringement on its service, but it hasn't exercised them to the fullest extent “and so faces liability,” plaintiffs said, citing A&M Records v. Napster.

Altice’s higher speed and higher priced services “are more attractive to customers who use up bandwidth for their piracy,” said the response. That establishes a “causal relationship” between copyright infringement of plaintiffs’ music by the ISP’s subscribers “and the financial benefit Altice reaped by maintaining that relationship.” Since infringers knew they could use the service “with impunity,” they were drawn to the service and “incentivized to stay,” which is “sufficient to state a claim for vicarious infringement.”