Recording Industry’s Infringement Claims Not Sustainable ‘as a Matter of Law’: Altice

The opposition of 54 record labels and music publishers to Altice USA’s motion to dismiss their copyright infringement complaint (see 2401300001) “concedes much of what makes their legal claims so untenable,” said Altice’s reply Tuesday (docket 2:23-cv-00576) in U.S. District Court for Eastern Texas in Marshall in support of that motion. The labels and publishers allege that Altice has knowingly contributed to, and reaped “substantial profits” from, massive copyright infringement committed by thousands of its internet subscribers. On their direct infringement claims, the plaintiffs “admit they make no specific allegations that anyone transferred an infringing file to anyone else at any time,” said Altice’s reply. “At most, they allege the circumstantial possibility that users used Altice internet to infringe at unidentified times, not that any particular infringing act plausibly occurred on Altice’s network,” it said. On their claims of reproduction of any infringed works, the plaintiffs “admit they can point only to an anonymous user’s mere possession of a file, which could have occurred at any time, using any internet connection,” it said. As for distributions, the plaintiffs “vaguely allege” that their vendor confirmed that a subscriber began to distribute a file, “which at most alleges that the subscriber transmitted some packets of data, not a useable, infringing file,” it said. The plaintiffs’ whole case “is built on the allegation that infringing files were made available, a theory that could never sustain their claims as a matter of law,” it said. On their contributory infringement claims, the plaintiffs “lay their theory bare” said Altice’s reply. If Altice receives as few as two notices alleging that an anonymous person used an Altice internet connection to infringe, even years apart, they allege that Altice has knowledge that someone will use this same connection to infringe again, “and culpably contributes to all such future infringement merely by not cutting the cord on an entire household or business,” it said. Common sense and U.S. Supreme Court case law “both foreclose that theory,” it said. On their vicarious liability claim, the plaintiffs “brush aside” the Feb. 20 decision in the 4th U.S. Circuit Appeals Court in Sony Music Entertainment v. Cox Communications (see 2402210027), “which offers point-for-point refutation of the same theory of direct financial benefit” to Altice that the plaintiffs offer here, it said. “They also fail to explain how Altice’s bare right to terminate entire households and businesses from the internet is the equivalent of a right and ability to supervise millions of internet users’ activities online,” it said: “The motion should be granted.”