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Last week, the U.S. District Court for the District of Colorado issued an order in <em>Warner Records Inc. et al. v. Charter Communications, Inc.</em>, No. 19-cv-874 (Apr. 15, 2020), denying Charter’s motion to dismiss.

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In March of 2019, Universal Music Group, Sony Music Entertainment, and Warner Music Group sued Charter, one of the country’s largest internet service providers. The suit asserted a claim for vicarious copyright infringement. More specifically, the plaintiffs, who are music publishing and licensing organizations, asserted that Charter is liable for infringement because it failed to reasonably implement a policy resulting in the termination of subscriber accounts linked to users who repeatedly pirated copyright-protected audio and audiovisual content. The plaintiffs asserted that Charter, by its lack of action, either knowingly permits its users to unlawfully pirate audio and audiovisual content or is willfully blind to these actions.

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Charter moved to dismiss. Charter asserted that it does not receive a direct financial benefit from its subscribers’ infringement because “it does not affect Charter’s revenues whether a subscriber . . . uses the internet to infringe copyrights, and/or for legitimate purposes.” Charter further challenged the sufficiency of plaintiffs’ assertions that subscribers “were drawn by the ability to infringe on plaintiffs’ works.” Lastly, Charter argued it did not have the right or ability to control the infringing activity.

The Court rejected each of these arguments. The Court first explained that “the ability to engage in infringing conduct need not be the primary draw of defendant’s services, but only <em>a</em> draw.” The Court noted the Complaint alleges that infringing activity accounts for 11% of all internet traffic, indicating that “a significant number of subscribers are likely drawn by the ability to download infringing content.” The Court also determined the Complaint adequately alleged that Charter had the right and ability to control infringing activity because Charter could have limited its subscribers’ ability to infringe by blocking their internet access. Because the Complaint sufficiently alleged that “at least some of Charter’s subscribers were drawn by the ability to infringe on plaintiffs’ works,” and that “Charter had the right and ability to control infringing activity,” the Court denied Charter’s motion to dismiss plaintiffs’ claim for vicarious copyright infringement.

Internet Service Provider Can Be Liable for Failure to Police Subscriber Infringement

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