Judge Sees No Evidence that Pirates Were Drawn by ISP’s Lack of ‘Policing’

A group of RIAA labels has suffered a setback in their case against ISP Grande Communications. US Magistrate Judge Andrew Austin recommends denying their motion for an amended complaint, as there is no new evidence suggesting that pirates signed up with the provider due to its lacking repeat infringer policy.

Last year several major record labels, represented by the RIAA, filed a lawsuit against ISP Grande Communications accusing it of turning a blind eye to pirating subscribers.

According to the labels, the Internet provider knew that some of its subscribers were frequently distributing copyrighted material, but failed to take any meaningful action in response.

Grande refuted the accusations and filed a motion to dismiss the case. The ISP partially succeeded as the claims against its management company Patriot were dropped.

The same was true for the vicarious infringement allegations. The court saw no evidence that potential customers would specifically sign up with Grande because it did not police infringing conduct by its subscribers.

The labels disagreed, however, and were not ready to let any claims go. In May they submitted a motion for leave to file an amended complaint including new evidence obtained during discovery. Among other things, they argued that Grande willingly kept pirating subscribers aboard, to generate more revenue.

This week, US Magistrate Judge Andrew Austin issued his “report and recommendation” on the matter, which delivers a significant setback for the RIAA labels.

Judge Austin sees no new evidence which shows that ‘pirate’ subscribers were specifically drawn to Grande. The new evidence may indicate that Grande failed to terminate pirating subscribers for years, but that’s not enough.

“First, the original Complaint alleged essentially the same or similar facts,” the recommendation reads.

“Second, the new allegations still fail to say anything about the motivations of Grande’s subscribers when they sign up with Grande. That is, Plaintiffs still fail to plead facts showing Grande gained or lost customers because of its failure to terminate infringers.”

The alleged pirates used BitTorrent to share infringing works, which is something they could have done through any ISP, the Magistrate Judge adds.

The RIAA labels also argued that Grande’s management company Patriot Media Consulting, which is also listed as a defendant, should be held liable too.

However, the court previously ruled that, while Patriot employees were involved in policy making, they didn’t take any decisions or actions that led to the alleged infringements.

According to the order, the labels’ new evidence doesn’t change this.

“Though there is more detail in the proposed amendment, these allegations are “more of the same” when compared to the original complaint,” Magistrate Judge Austin writes.

In conclusion, Judge Austin recommends denying the RIAA labels’ motion to file an amended complaint. If this recommendation is adopted by the District Court Judge, the case against Grande will continue based on the contributory infringement claim alone.

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Judge Austin’s full report and recommendations filing is available here (pdf).