RCN Telecom Turned a Blind Eye to Subscribers' ‘Mass’ Infringement, Says SMV

RCN Telecom Services and RCN of Massachusetts, in their May 13 motion to dismiss Screen Media Ventures’ Digital Millennium Copyright Act complaint (see 2405140031), don’t deny “the basic elements of liability” under the DMCA, said SMV's opposition brief Monday (docket 3:23-cv-23356) in U.S. District Court for New Jersey. SMV’s complaint alleges that RCN’s subscribers, or those using their subscriptions, use software such as BitTorrent to infringe SMV’s “exclusive rights of reproduction and distribution” (see 2312290005). The defendants also don’t deny receiving thousands of notices of infringement related to SMV’s and other rights’ holders works, nor do they deny failing to take any action to terminate known infringers from using RCN’s network “to perpetuate this mass infringement,” it said. They also don’t deny “having the means and control to easily prevent such activity, for which they are legally responsible,” it said. RCN “disingenuously argues” that because certain “unknown and unidentified hypothetical persons” who aren’t its subscribers could have used its services to infringe SMV’s works, the complaint doesn’t state a claim that the defendant’s subscribers infringed the plaintiff’s works, said the opposition. This “shot in the dark” attempt to raise factual issues to cast doubt on the sufficiency of allegations of direct copyright infringement is wrong “both procedurally and substantively,” it said. Procedurally, at the pleading stage, factual allegations are taken to be true, it said. Substantively, the issue is the use of RCN’s network and services “to commit acts of infringement known to RCN,” it said. Thus, SMV’s factual allegations that users with IP addresses belonging to the defendant infringed the plaintiff's works “must be taken as true and are well-pled,” it said. SMV’s further speculative allegations that some individuals who aren’t subscribers but still used RCN’s services to infringe SMV’s copyrighted works also don’t diminish “the well-pleaded facts that thousands of illegal downloads by subscribers did occur on RCN’s network,” it said.