Sep 2

Sep 2 DMCA Copyright Infringement Lawsuit: Record Companies v. RCN

September 1, 2019 – Seventeen record companies have filed a copyright infringement lawsuit against Internet service provider RCN Telecom Services, LLC and its subsidiaries.[1] The entire lawsuit – factual allegations, causes of action, and evidence – is similar to previous lawsuits filed by record companies against Charter Communications, Grande Communications Networks, LLC,[2] and Cox Communications.[3] In fact, nearly all of the Plaintiff record companies suing RCN also are parties to the 2017 lawsuit filed against Grande Communications, a sister company of RCN.[4]

Patriot Media Consulting, LLC, a provider of management services to RCN, has been named as a co-defendant in the lawsuit. Patriot was named as a defendant in the complaint that initiated the copyright infringement lawsuit against Grande Communications, but Patriot was later dismissed from the action after the court concluded the relationship between the alleged direct infringers and Patriot was too attenuated to support a claim against Patriot. The same result should occur in this lawsuit.

In their complaint, the record companies allege that RCN subscribers use RCN’s high-speed Internet service to access BitTorrent networks, and illegally upload and download copyrighted works. The record companies have retained Rightscorp, Inc. (Rightscorp) to act as an enforcement agent for their copyrighted works. Rightscorp utilizes proprietary software that “monitors BitTorrent systems and extracts information about [broadband subscribers’] infringing activity, including, inter alia, the IP address, the ISP, the infringing content, and the suspected location of the host computer accessing BitTorrent networks. Rightscorp’s system also has the capability to acquire entire files from the infringing host computers.”[5] The Plaintiffs include this data point to describe BitTorrent as a vehicle for piracy: “In a 2013 report, NetNames estimated that 99.97% of non-pornographic files distributed by BitTorrent systems infringe copyrights, and there is no evidence that this figure has changed since.”[6]

The record companies’ complaint alleges two causes of action: (1) RCN is liable as a contributory copyright infringer for the infringing acts of its subscribers; and (2) RCN is vicariously liable for the infringing acts of its subscribers because RCN has the right and ability to supervise and control the infringing activities that occur through the use of its service, and has derived a direct financial benefit from the infringement. These are the two standard causes of action that have been alleged in previous DMCA lawsuits against ISPs. For what it’s worth, however, no plaintiff has been successful in proving a vicarious liability cause of action due to the inability to prove that ISPs have the right and ability to supervise and control their subscribers’ infringing activities.

The Plaintiffs record companies claim RCN is secondarily liable for RCN subscribers’ direct copyright infringement because RCN has received more than five million Digital Millennium Copyright Act (DMCA) notices evidencing such activity. The record companies argue RCN is not eligible for DMCA safe harbor immunity because RCN failed to terminate the accounts of repeat infringers or take any other meaningful action to curb subscribers’ copyright infringement. Here are the key allegations made in the complaint:

After purchasing high-speed internet access from RCN, subscribers can access BitTorrent networks and upload and download copyrighted works with ease and increasing speed, depending upon the level of RCN service that the subscribers purchase. Thus, RCN provides its subscribers with a fully functioning system that allows them to engage in copyright infringement on a massive scale using BitTorrent networks. And for those subscribers who want to pirate more and larger files at faster speeds, RCN obliges them in return for higher fees. The greater the bandwidth its subscribers require for pirating content, the more money RCN receives.[7]
RCN has known for years that its subscribers routinely use its network for illegal downloading and uploading of copyrighted works, especially music.[8]
Rightscorp has sent RCN more than five million infringement notices, which identified tens of thousands of RCN’s subscriber accounts that were engaged in repeated acts of copyright infringement.[9]
Prior to the filing of this Complaint, Rightscorp notified RCN that 36,773 of its customers had engaged in repeat infringement; 10,628 of its customers had each engaged in infringement at least 50 times; 6,913 of its customers had each engaged in infringement at least 100 times; 1,960 of its customers had engaged in infringement at least 500 times; and 966 of its customers had engaged in infringement at least 1,000 times.[10]
Because Rightscorp can observe only a small percentage of the overall activity of RCN subscribers, upon information and belief, the infringement Rightscorp reported to RCN is likely a small fraction of the infringing activity occurring over RCN’s network.[11]
Rightscorp also provided RCN with weekly infringement summaries detailing the notices sent to RCN that week, as well as access to an online dashboard that allowed RCN to access the Rightscorp records and even listen to the files that its users were infringing.[12]
Instead of terminating repeat infringers—and losing subscription revenue—RCN for years simply looked the other way and chose to allow the unlawful conduct to continue unabated. By ignoring the repeat infringement notifications and refusing to take action against repeat infringers, and instead providing those customers with ongoing internet service, Defendants made a deliberate decision to contribute to known copyright infringement.[13]
Although RCN purported to adopt a policy to address repeat infringers, RCN in reality never adopted or reasonably implemented a policy that provided for the termination of repeat infringers—despite receiving over five million infringement notices. Its purported policy was a sham.[14]

The Plaintiff record companies are seeking: (i) a permanent injunction; (ii) statutory damages, pursuant to 17 U.S.C. § 504(c), in an amount of up to $150,000 with respect to each work infringed, or such other amounts as may be proper under 17 U.S.C. § 504(c); (iii) in the alternative, actual damages; and (iv) costs and reasonable attorneys’ fees pursuant to 17 U.S.C. § 505. The suit was filed in U.S. District Court for the District Of New Jersey (Case No. cv-19-17272).

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[1] UMG Recordings Inc. et al. v. RCN Telecom Services LLC et al., Case No. cv-19-17272, U.S. District Court For The District Of New Jersey (Aug. 27, 2019) (Complaint). The Plaintiffs are UMG Recordings, Inc., Capitol Records, LLC, Sony Music Entertainment, Arista Records LLC, Arista Music, LaFace Records LLC, Volcano Entertainment III, LLC, Zomba Recording LLC, Atlantic Recording Corporation, Bad Boy Records LLC, Elektra Entertainment Group Inc., Fueled By Ramen LLC, Maverick Recording Company, The All Blacks U.S.A., Inc., Warner Records Inc., Warner Records/Sire Ventures, Inc., and WEA International, Inc. Plaintiffs are the copyright owners of, or owners of exclusive rights with respect to, the great majority of copyrighted sound recordings sold in the United States, including sound recordings embodying the performances of some of the most popular and successful recording artists of all time, from Aerosmith to ZZ Top, Bruce Springsteen to Bon Jovi, One Direction to Beyoncé, Kanye West to John Legend, Rihanna to Carrie Underwood, and many more.

[2] See UMG Recordings, Inc. v. Grande Communications Networks, LLC, 2018 WL 1096871 (W.D. Tex. Feb. 28, 2018).

[3] BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293 (4th Cir. 2018).

[4] See RCN, Grande and Wave Broadband Join Forces, Press Release, May 22, 2017, https://www.rcn.com/hub/about-rcn/newsroom/2017-press-releases/rcn-grande-and-wave-broadband-join-forces/; RCN/Grande Closes Acquisition of Wave Broadband, Press Release, Jan. 24, 2018, https://www.rcn.com/hub/about-rcn/newsroom/2018-press-releases/rcn-grande-closes-acquisition-of-wave-broadband/.

[5] Complaint at 55.

[6] Complaint at 54.

[7] Complaint at 61.

[8] Complaint at 63.

[9] Complaint at 64.

[10] Complaint at 64.

[11] Complaint at 65.

[12] Complaint at 68.

[13] Complaint at 70.