BMG Can’t Show Vicarious Liability, Says Altice Motion to Dismss

Allegations by BMG and its affiliates that Altice turned a blind eye to music piracy committed by its high-speed internet subscribers (see 2212150019) should be dismissed because the plaintiffs fail to state a vicarious liability claim, said Altice’s motion Friday (docket 2:22-cv-00471) in U.S. District Court for Eastern Texas in Marshall. BMG’s case against Altice “is the latest attempt by the music industry to engineer a copyright-liability regime” that makes internet service providers “responsible for all infringement that takes place on the internet,” said the motion. The record labels would “thereby turn ISPs into their de facto enforcers,” it said. The plaintiffs don’t, and couldn’t, allege Altice “stores or hosts infringing materials, that an Altice internet connection offers some unique ability to transfer music files, or that Altice could block access to such files,” it said. Nor can they assert Altice has any particular financial interest in its subscribers’ unauthorized access to music, it said. The plaintiffs allege Altice profited from the infringement because it collected subscription fees from the infringing subscribers and didn’t terminate their accounts, said Altice. “But that is legally irrelevant to vicarious liability, because it does not claim that Altice benefits from infringement,” it said. The plaintiffs need to allege Altice has a direct financial interest in the infringing activity to satisfy a claim of vicarious liability, it said.