Music labels sue Charter, complain that high Internet speeds fuel piracy

By Jon Brodkin

A man, surrounded by music CDs, uses a laptop while wearing a skull-and-crossbones pirate hat and holding one of the CDs in his mouth.
Enlarge / "Yarr, matey, a pirate would be lost at sea without a swift broadband connection."

The music industry is suing Charter Communications, claiming that the cable Internet provider profits from music piracy by failing to terminate the accounts of subscribers who illegally download copyrighted songs. The lawsuit also complains that Charter helps its subscribers pirate music by selling packages with higher Internet speeds.

While the act of providing higher Internet speeds clearly isn't a violation of any law, ISPs can be held liable for their users' copyright infringement if the ISPs repeatedly fail to disconnect repeat infringers.

The top music labels—Sony, Universal, Warner, and their various subsidiaries—sued Charter Friday in a complaint filed in US District Court in Colorado. While Charter has a copyright policy that says repeat copyright infringers may be disconnected, Charter has failed to disconnect those repeat infringers in practice, the complaint said:

Despite these alleged policies, and despite receiving hundreds of thousands of infringement notices from Plaintiffs, as well as thousands of similar notices from other copyright owners, Charter knowingly permitted specifically identified repeat infringers to continue to use its network to infringe. Rather than disconnect the Internet access of blatant repeat infringers to curtail their infringement, Charter knowingly continued to provide these subscribers with the Internet access that enabled them to continue to illegally download or distribute Plaintiffs' copyrighted works unabated. Charter's provision of high-speed Internet service to known infringers materially contributed to these direct infringements.

The complaint accuses Charter of contributory copyright infringement and vicarious copyright infringement. Music labels asked for statutory damages of up to $150,000 for each work infringed or for actual damages including any profit Charter allegedly made from allowing piracy. The complaint focuses on alleged violations between March 24, 2013 and May 17, 2016.

During that time, plaintiffs say they sent infringement notices to Charter that "advised Charter of its subscribers' blatant and systematic use of Charter's Internet service to illegally download, copy, and distribute Plaintiffs' copyrighted music through BitTorrent and other online file-sharing services." The music industry's complaint repeatedly focused on BitTorrent and other peer-to-peer networks, saying that "online piracy committed via BitTorrent is stunning in nature, speed, and scope."

Lawsuit: High speeds enabled piracy

The music labels' complaint also seems to describe the basic acts of providing Internet service and advertising high speeds as nefarious:

Many of Charter's customers are motivated to subscribe to Charter's service because it allows them to download music and other copyrighted content—including unauthorized content—as efficiently as possible. Accordingly, in its consumer marketing material, including material directed to Colorado customers, Charter has touted how its service enables subscribers to download and upload large amounts of content at "blazing-fast Internet speeds." Charter has told existing and prospective customers that its high-speed service enables subscribers to "download just about anything instantly," and subscribers have the ability to "download 8 songs in 3 seconds." Charter has further told subscribers that its Internet service "has the speed you need for everything you do online." In exchange for this service, Charter has charged its customers monthly fees ranging in price based on the speed of service.

That paragraph from the music labels' complaint merely describes the standard business model of Internet providers. There is nothing illegal about offering higher Internet speeds in exchange for higher prices.

But the labels also allege that Charter's lax approach to copyright enforcement helped it earn more revenue, in part because piracy supposedly inspired consumers to subscribe to faster Internet tiers.

"For those account holders and subscribers who wanted to download files illegally at faster speeds, Charter obliged them in exchange for higher rates. In other words, the greater the bandwidth its subscribers required for pirating content, the more money Charter made," the complaint said.

The complaint argues that, while Charter performs network management to block "spam and other unwanted activity," the ISP "has gone out of its way not to take action against subscribers engaging in repeated copyright infringement."

"Charter condoned the illegal activity, because it was popular with subscribers and acted as a draw to attract and retain new and existing subscribers. Charter's customers, in turn, purchased more bandwidth and continued using Charter's services to infringe Plaintiffs' copyrights," the complaint said. "Charter undoubtedly recognized that if it terminated or otherwise prevented repeat infringer subscribers from using its service to infringe or made it less attractive for such use, Charter would enroll fewer new subscribers, lose existing subscribers, and ultimately lose revenue."

Infringement notices that music labels send to Charter and other ISPs identify violators by their IP addresses.

"Because the copyright holders could only determine the unique IP addresses of an ISP's infringing subscribers but not their actual identities, they served subpoenas on Charter and other ISPs to obtain the infringing subscribers' names and contact information," the complaint said. "Although Charter's customer agreements allowed it to produce that information and no real doubt existed as to their customers' underlying infringement, Charter vigorously opposed the subpoenas, undermining the record companies' efforts to curb direct infringement activity."

When contacted by Ars, a Charter spokesperson said, "We will defend against these baseless allegations." We asked Charter if it ever terminates the accounts of alleged copyright infringers, but the company provided no answer.

Industry has sued several ISPs

The record companies last week also sued Charter subsidiary Bright House Networks in US District Court in the Middle District of Florida, a TorrentFreak article noted. Music labels had previously sued ISPs such as Cox and Grande Communications.

Under the Digital Millennium Copyright Act, ISPs cannot be held liable for Internet users' copyright infringement if the ISPs "'adopt and reasonably implement' a repeat infringer policy that provides for termination of users' accounts 'in appropriate circumstances,'" an EFF explainer notes. But the law is vague enough that courts have had to interpret its meaning in various cases over the years.

In 2013, AT&T and other ISPs began using a "six-strikes" Copyright Alert System, working in conjunction with the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA). The system ended up doing little to thwart copyright infringement and was shut down early last year.

Music publishers have called on ISPs to filter out pirated content, and they have filed various lawsuits against ISPs. Cox lost a jury verdict in a music piracy case in 2015. Another lawsuit involving Cox was settled last year, but Cox faces yet another lawsuit filed in August 2018.

In the Grande case, a federal judge this month ruled that Grande does not qualify for a legal safe harbor because of the ISP's "complete abdication of [its] responsibilities to implement and enforce a policy terminating repeat copyright infringers."

While ISPs have often resisted disconnecting alleged pirates, AT&T recently terminated the broadband service of more than a dozen customers who were accused multiple times of copyright infringement.

Disclosure: The Advance/Newhouse Partnership, which owns 13 percent of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, which owns Ars Technica.