Update on UMG v. Grande Communications: UMG’s Files Summary Judgment Motion To Strip Grande of DMCA Safe Harbor Defense
UPDATE: ISP Grande Communications Found Secondarily Liable For Copyright Infringement, Must Pay $46.7 Million In Statutory Damages
November 3, 2022 – A jury has determined that Grande Communications, LLC is contributorily liable for copyright infringement of 1,403 copyrighted works owned by a group of record labels. It also concluded Grande’s contributory infringement was willful. The jury awarded the record labels a total of $46,766,200.00 in statutory damages.
In April 2017, a group of record companies filed a copyright infringement lawsuit against Grande Communications Networks, LLC, a Texas-based Internet service provider. The record companies produce and distribute commercial sound recordings, and include UMG Recordings, Inc., Capitol Records, Warner Bros. Records, Sony Music, Roc-A-Fella Records, and numerous others – basically the largest record companies in the U.S. They allege Grande’s broadband subscribers have repeatedly infringed their copyrighted works by reproducing and distributing them using BitTorrent. The record companies claim Grande is secondarily liable for these infringements because Grande does not follow its DMCA policy by terminating subscribers who are repeat infringers. The plaintiffs are referred to collectively as UMG in this blog post because that is the record company listed first in the caption for the lawsuit.
The parties have conducted discovery, and both have moved for summary judgment. UMG’s summary judgment motion seeks to strip Grande of its Section 512 DMCA safe harbor from secondary copyright infringement liability.[1]
UMG claims Grande had no repeat infringer policy for seven years and allowed unlimited infringement by its subscribers during this time period. UMG says any policy that Grande claims it had was an absolute mirage! Based on some damaging statements made during depositions and other admissions, UMG appears to have a strong argument that Grande failed to implement a repeat infringer policy, which as we saw in the BMG v. Cox case, can result in an ISP losing its DMCA safe harbor defense.[2] Actually, this should be a slam dunk for UMG – this summary judgment motion will be granted and Grande will not be able to use a safe harbor defense at trial. Keep in mind though, this does not mean Grande will lose. UMG will still have to prove direct infringement by Grande broadband subscribers for every single piece of copyrighted material that was allegedly infringed. OK, let’s take a look at UMG’s motion for summary judgment.
What Is The DMCA Safe Harbor
To provide some quick background, the Digital Millennium Copyright Act (DMCA) establishes a safe harbor from copyright infringement claims for ISPs that transmit potentially infringing material over their networks. To qualify for the safe harbor, an ISP must adopt and reasonably implement a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the ISP’s system or network who are repeat copyright infringers.[3] An ISP, of course, also must notify its subscribers and account holders of its repeat infringer policy. A court will find an ISP did not implement its policy if the ISP doesn’t enforce the terms of its policy in any meaningful fashion – i.e. fails to terminate repeat infringers when appropriate. The statute, though, does not define repeat infringer, nor does it explain when is an appropriate time to terminate. The other problems with Section 512 are too numerous to explain here.
UMG Claims Grande Is Not Eligible For A DMCA Safe Harbor Because Grande Did Not Implement Its DMCA Policy
In its motion for summary judgment, UMG claims Grande cannot establish eligibility for a DMCA safe harbor because Grande did not implement a DMCA repeat infringer policy. How so? Because Grande did not terminate broadband customers who repeatedly infringed copyrighted material.
UMG claims that before October 2010, Grande would suspend and potentially terminate broadband customers that received infringement notices. But in October 2010, UMG alleges Grande reversed course and decided to not terminate customers who received copyright infringement notices. This choice stayed in place from October 2010 until October 2013.
Beginning October 2013, there are two Grande policies at play: an Acceptable Use Policy and a DMCA Policy. Grande adopted its Acceptable Use Policy in October 2013, which stated repeat infringers may be terminated. UMG claims, however, from October 2013 through October 2016, it was Grande’s policy to not terminate repeat copyright infringers, “regardless of the source, content, or volume of any notices of infringement it received.”[4] Grande published its DMCA Policy online in November 2016, but Grande, UMG claims, did not begin terminating repeat infringers under the policy until June 2017.
Viewing everything together, UMG asserts Grande did not terminate a single broadband customer for copyright infringement from October 2010 until June 2017. This is confirmed by Grande’s response to a request for admission and this deposition testimony of a Grande employee: “Q. So it’s fair to say that Grande did not terminate any subscribers for copyright infringement or alleged copyright infringement between at least October 2010 and May 2017, correct? A. Correct.”[5]
UMG also mentions internal emails showing Grande personnel were tracking the number of infringement notices certain customers received – over 9,000 customers were listed on Grande’s DMCA Excessive Violations Report in 2016.
It’s important to note that UMG’s evidence that some of Grande’s broadband subscribers were repeat infringers is based on infringement notices issued by Rightscorp. Now, one DMCA infringement notice directed at a broadband customer does not necessarily mean that customer is a repeat infringer. However, UMG claims there were customers who received vast amounts of notices. “One Grande customer received 13,958 notices from Rightscorp in 2015.39 Another received 12,953.”[6] Well then. These two people probably should have been kicked off at some point.
UMG also argues in its motion for summary judgment that appropriate circumstances existed to terminate repeat infringers. This argument relies on much of the same evidence, such as this –Grande received at least 1.2 million notices of alleged copyright infringement by Grande broadband subscribers between 2011 and 2016, causing Grande to send more than 200,000 letters to customers regarding the notices.
As was mentioned at the beginning of this post, this is a solid argument from UMG. It’s likely the summary judgment motion will be granted and Grande will not be able to use a safe harbor defense at trial. Again, this does not mean Grande will lose. UMG will still have to prove direct infringement by Grande broadband subscribers for every single piece of copyrighted material that was allegedly infringed.
For more on UMG Recordings, Inc., et al., v. Grande Communications Networks, LLC, go here:
Death Blow: Texas Court Strips ISP Grande Communications Of DMCA Safe Harbor Defense
Another Broadband Provider Battles DMCA Lawsuit
Court Denies UMG’s Attempt To Amend Copyright Infringement Complaint Against Grande Communications
UMG v. Grande Communications Update: Grande’s Motion For Summary Judgment
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[1] UMG Recordings, Inc., et al., v. Grande Communications Networks, LLC, and Patriot Media Consulting, LLC, CAUSE NO. A-17-CA-365-LY, Plaintiffs’ Motion For Partial Summary Judgment As To Grande Communications Networks LLC’s DMCA Safe Harbor Defense (W.D. Tex.).
[2] BMG Rights Management (US) LLC v. Cox Communications, Inc., 149 F.Supp.3d 634 (E.D. Va. 2015) (summary judgment opinion stripping Cox of DMCA safe harbor protection).
[3] 17 U.S.C. § 512(i)(1)(A).
[4] UMG Motion at p. 6.
[5] UMG Motion at p. 11 (citing deposition testimony).
[6] UMG Motion at p. 11 (citing deposition testimony).
