5 March 2020CopyrightEdward Pearcey

ISP facing $1bn damages questions legitimacy of Warner’s recordings

US-based internet service provider (ISP) Charter Communications is pushing back against copyright infringement claims amounting to over $1 billion by Warner Records, arguing that many recordings have been improperly registered.

In a filing made at the US Court District Court for the District of Colorado on Thursday, February 28, Charter claimed Warner’s assertion that it is liable for secondary copyright infringement, based upon its internet subscribers allegedly infringing 6,963 sound recordings, can’t be enforced as an “invalid registration deprives plaintiffs of standing”.

Charter is currently facing a  lawsuit from Warner, filed in March last year, over alleged subscriber copyright infringement.

As part of those proceedings, Charter filed a motion of objection, in November 2019, against a judge‘s recommendation that it could be held liable for copyright infringement by its subscribers.

At the time, Charter said the court “threatens to open the floodgates for massive liability against ISPs for merely advertising and making available high-speed internet to the general public”.

According to the current filing, the plaintiffs registered most sound recordings as works ‘made for hire’ (WFH), “a box plaintiffs or alleged predecessors checked when registering them for protection with the US Copyright Office”.

Usually, a record contract will indicate that the actual recording is a so-called WFH, wherein the record company owns it for the extent of its copyright.

“For these registrations to be accurate,” said Charter, the “plaintiffs must have valid, signed WFH agreements with the artists who created the works. Based on Charter’s review of the production (or lack thereof) of WFH agreements within a 110-work sample, plaintiffs falsely registered at least 40 works in this case as WFH.”

It is therefore “highly probable” that a significant number of additional sound recordings in the suit were also inaccurately registered, added Charter, and “an applicant’s knowing misstatement to [the] copyright office regarding a work’s author can invalidate the copyright registration, which deprives the applicant of standing to sue for infringement of that work.”

In response, filed at the request of the court on the same day, Warner argued that case law “decisively refutes” Charter’s position.

“Charter has not cited a single case—because there is none—in which a court invalidated the registration of a plaintiff who owned a copyrighted work because it was incorrectly designated a WFH on the registration,” Warner said.

Charter Communications provides internet to users in the US under the brand name Spectrum.

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More on this story

3 February 2020   US internet service provider Cox Communications wants a new trial after it was ordered to pay $1.1 billion in damages to leading record labels including Universal for music copyright infringement.
8 November 2019   The owner of a US internet service provider has filed a motion of objection against a judge‘s recommendation that it could be held liable for copyright infringement by its subscribers.
3 June 2020   A Virginian court has mostly rejected US internet service provider Cox Communications’ challenges to a ruling which would see the ISP pay $1 billion to major record labels.