RCN 'Secondarily Liable' for 'Massive Piracy' of Screen Media's Works, Says Complaint

RCN Telecom Services is “secondarily liable” for direct copyright infringement under sections 106 and 501 of the Copyright Act and in violation of the Digital Millennium Copyright Act, alleged motion picture distribution company Screen Media Ventures (SMV) in a complaint Wednesday (docket 3:23-cv-23356) in U.S. District Court for New Jersey in Trenton.

The case has claims similar to those in a “parallel proceeding” before the same court, Bodyguard Productions v. RCN Telecom Services (docket 3:21-cv-15310), said the complaint, which made numerous references to the Aug. 13 suit’s claims and allegations.

SMV invested “significant financial resources, time and effort” in marketing works, including Topper, The Flying Deuces, Sherlock Holmes and the Secret Weapon and My Favorite Brunette, based on the “expectation that it would have an opportunity to get a return on its investment from rentals and sales,” said the complaint. But “massive piracy” by internet service providers’ subscribers via peer-to-peer networks, and the “willful failure” of ISPs, such as RCN, to deal with the issue, “despite clear notice of it have hindered this opportunity,” it said.

SMV has ownership interest in the copyrights of works shown in exhibit A in the complaint, through work for hire agreements, assignments or mergers, the complaint said. RCN had notice of SMV’s rights through “at least the credits” in the movies that bore copyright notices, it said. It also had notice of SMV’s rights through notices to RCN’s “designated abuse contact,” it said.

RCN’s subscribers, or those using their subscriptions, use software such as BitTorrent to infringe SMV’s “exclusive rights of reproduction and distribution,” said the complaint. The internet service provider holds its subscribers responsible “for all activity conducted” on their internet service, including activities conducted by others using their service, it said.

Many of RCN's subscribers are “motivated to subscribe to RCN’s service because it allows them to download movies and other copyrighted content including unauthorized content -- as efficiently as possible,” said the complaint. RCN “knew that their subscribers routinely used their networks for illegally downloading and uploading copyrighted works,” particularly SMV’s, it said.

SMV’s agent, along with the agent for plaintiffs in the parallel proceeding, sent “thousands of notices” to RCN’s abuse contact informing the company that subscribers were using their service to infringe SMV’s works, the complaint said. The notices included identities of infringing subscribers by IP address, port numbers and time of infringement, plus the file title of the infringing copy being pirated with the altered copyright management information (CMI), it said.

BitTorrent is a popular peer-to-peer file-sharing protocol for its ability to distribute a large file without creating a heavy load on the source computer and network, the complaint said. It allows users to “join a ‘swarm’ of host computers to download and upload from each other simultaneously," it said. Upon information and belief, RCN’s subscribers accessed BitTorrent sites, including the YTS website, to upload and download SMV’s copyrighted works from IP addresses provided by RCN, it said.

SMV engaged Facterra and Irdeto to monitor the internet for instances of piracy of its works, the complaint said. Facterra identified IP addresses belonging to RCN subscribers and being used for the BitTorrent protocol to “reproduce, distribute, display or perform" its copyrighted works, it said. From August 2018 to the filing of the complaint, Facterra identified over 60,000 instances of sharing copies of SMV’s works confirmed at IP addresses belonging to RCN subscribers, it said.

The initial seeder of infringing file copies of The Locksmith added “RARGB” to the file title to “brand the quality of piracy file and attract further traffic to the RARBG website,” said the complaint. RCN subscribers knew that the entity included in the altered CMI, such as RARBG, “was not the author of SMV’s works,” and that the CMI that included RARBG in the file names was false, it said. Those subscribers distributed SMV’s works with altered CMI and “induced, enabled and facilitated further infringements,” it said.

SMV’s agent generated notices of infringements, in accordance with the DMCA, to be sent to ISPs of IP addresses where agents confirmed infringement of copyright protected content, said the complaint. The agent sent “numerous notices” to RCN concerning infringements of copyright-protected works at IP addresses assigned to RCN from the American Registry for Internet Numbers; similarly, the parallel proceeding cited over 3,400 notices sent to RCN, demonstrating RCN’s “knowledge” of infringement of several movie titles. In numerous instances, RCN failed to terminate the account “or take any meaningful action against” subscribers at specific IP addresses “even after agents of plaintiffs in the Parallel Proceeding sent” well over 100 notices for certain titles, it said.

SMV alleges the copyright infringements arise from RCN’s ads, such as one promoting its high-speed internet network with a tiered pricing structure that tops out at download speeds of 1,500 Mbps. A March 2020 ad said subscribers of the highest tier could “download an HD movie in a snap,” it said. The ads motivate customers to subscribe, and “subscribers are motivated to become subscribers from the knowledge of [RCN’s] practice of ignoring notices of infringements or failing to take any meaningful action,” it said.

SMV asserts claims of contributory copyright infringement based upon material contribution, vicarious infringement and secondary liability for DMCA violations, the complaint said. It seeks permanent injunctions barring RCN from continuing to contribute to copyright infringement of its works and an order requiring RCN to adopt a policy that provides for termination of subscribers for which it receives more than three unique notices of infringements of copyright-protected works within 72 hours, without receiving a counter notification from the subscriber.

SMV also seeks orders requiring RCN to block subscribers from accessing “notorious piracy websites,” such as YTS, Piratebay, RARBG, 1337x and TorrentGalaxy that are listed in the government’s Notorious Foreign Markets trade report, and to disclose to SMV the identifications of subscribers who infringed its work on an ongoing basis after being provided notice, the complaint said.

The plaintiff seeks actual damages from copyright infringements and RCN’s associated profits, or, alternatively, maximum statutory damages of $150,000 per infringement pursuant to 17 U.S.C. section 504(a), and it seeks maximum statutory damages of $25,000 for each DMCA violation, plus attorneys’ fees and costs.