Piracy

Cloudflare has become the first internet intermediary beyond local residential ISPs, to block access to pirate sites in the UK. Users attempting to access certain pirate sites are greeted with 'Error 451 - Unavailable for Legal Reasons'. In theory, ISP blocking should prevent UK users from even seeing this notice, but a combination of Cloudflare's blocking mechanism and choices made by some VPN users results in a piracy dead end.

Original Article by Ernesto Van der Sar, TorrentFreak.

A coalition of nearly 50 record labels, including industry giants Warner and Sony, accuse Internet provider Altice of providing a safe haven for pirates. The companies request summary judgment in their ongoing lawsuit, arguing that Altice's repeat infringer policy is a "farce" and the "antithesis of reasonable." The ISP allegedly allowed piracy to flourish on its Optimum network, thus disqualifying it from safe harbor protection under the DMCA.

late 2023, a group of nearly 50 music labels, including Warner Records and Sony Music, filed a ‘mass-infringement’ lawsuit against Altice.

These music companies, all members of the RIAA, alleged that the ISP failed to take action against repeat infringers on the “Optimum” network, making it potentially liable for copyright infringement.

“Despite Altice’s stated policies and despite receiving tens of thousands of infringement notices concerning Plaintiffs’ works […] Altice knowingly permitted repeat infringers to continue to use its services to infringe,” the complaint read.

Labels Seek Summary Judgment

Both parties have gathered evidence to support their case and last week the music labels filed a motion for summary judgment. The labels ask the court to rule that Altice is not entitled to a safe harbor defense under the DMCA.

Safe harbor protection is important for ISPs, as it provides them with immunity from monetary damages related to subscribers’ piracy activities carried out through their services.

To enjoy safe harbor protection, U.S. law requires ISPs to “adopt and reasonably implement” a repeat infringer policy that provides for subscriber account terminations “in appropriate circumstances.” The details of this requirement are not spelled out, but the labels argue that Altice’s interpretation falls severely short.

‘A Safe Haven for Pirates’

Last week’s filing by the labels is heavily redacted, which makes it difficult to report on in detail. However, it is clear that the music companies see Altice’s repeat infringer policy as highly ineffective, or even counterproductive.

“First and foremost, the design and implementation of Altice’s policy are the antithesis of reasonable, making a farce of the DMCA’s repeat infringer termination policy requirement,” the labels write.

The details explaining how and why Altice’s implementation of the repeat infringer policy was lacking are largely blacked out, as shown below.

The implementation of this policy wasn’t reasonable either, the labels argue. They allege that subscriber accounts were not terminated resulting in a permanent loss of internet access, but were suspended and eventually reactivated.

That doesn’t square with the idea of a reasonably implemented repeat infringer policy, the labels argue. Instead, they counter that Altice offered a safe haven for pirates.

“The result of Altice’s actions, both by design and effect, was to provide its users with a safe haven to infringe,” the labels write.

“Ultimately, [a]n ISP cannot claim the protections of the DMCA safe harbor provisions merely by terminating customers as a symbolic gesture before indiscriminately reactivating them within a short timeframe.”

Reactivations & Commercial Subscribers?

The motion insists that these arguments are sufficient to rule that Altice is ineligible for safe harbor protection. If the court disagrees, the labels mention specific circumstances for which this would certainly be the case.

The two categories are redacted in the motion, but, based on the arguments and citations, we can speculate that commercial subscribers and reactivated subscribers are likely candidates.

The motion notes that commercial subscribers represented roughly 7.5-8% of the Altice subscriber base between 2020 and 2023. For these subscribers, which include third-party businesses, Altice purportedly had no repeat infringer policy.

In a similar vein, the unredacted context suggests that Altice should not be entitled to rely on a safe harbor defense for customers who continued to infringe after their accounts were terminated and then reactivated.

Clarity from the Supreme Court?

In addition to this motion for summary judgment, the labels also moved for summary judgment on their ownership of the works in suit. This appears to be a response to a completely sealed motion filed by Altice which concerned the number of statutory damages awards the labels are eligible for.

Without further details, it is nearly impossible to accurately report on these filings, but we expect that the eventual court order will fill in many of the blanks.

Looking more broadly, there’s also a forthcoming Supreme Court matter that will have repercussions for this case. Earlier this month, the Supreme Court granted Cox’s appeal in a similar subscriber liability case, which is expected to provide more clarity on ISPs’ legal obligations regarding repeat infringer policies.

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A copy of the music labels’ heavily redacted motion for summary judgment on Altice’s safe harbor defense, filed at the U.S. District Court for the Eastern District of Texas, is available here (pdf).

Shortly after the motion was filed, several replies also appeared in the docket, but these are all sealed and inaccessible.

Arrested in 2019 following an investigation by the UK's Police Intellectual Property Crime Unit, the former owner of pirate IPTV service Helix Hosting has just been sentenced to three years in prison by a court in the UK. Stephen Woodward, 36, reportedly generated around £1 million in revenue from three services, with offending that reportedly continued after his initial arrest.