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Internet provider WOW has asked a Colorado federal court to dismiss an expanded piracy liability complaint filed by several film companies earlier this year. The ISP says there is no evidence to show that it received any piracy notices for the 300 new works added to the lawsuit. In addition, it believes that recent court verdicts support a dismissal of at least some of the claims in the multimillion dollar lawsuit.

pirate-flagIn 2021, Colorado-based Internet provider WOW was sued by a group of movie companies, including Millennium Media and Voltage Pictures.

The filmmakers accused the ISP of failing to terminate the accounts of subscribers who were repeatedly flagged for sharing copyrighted material.

These type of lawsuits have resulted in multi-million dollar judgments against Cox and Grande; a fate WOW hopes to avoid. The ISP challenged the claims and filed a motion to dismiss the case early on, arguing that the allegations fall short.

WOW vs. ‘Trolls’
The ISP described the film companies and their anti-piracy partner MaverickEye as “copyright trolls”. WOW mentioned that the companies previously tried to get quick settlements from John Doe subscribers based on little more than an IP-address. This lawsuit isn’t progressing quickly by any means, however.

Last year, a federal court in Colorado denied the ISP’s motion to dismiss the piracy liability allegations. At this stage, the infringement notices sent to IP-addresses of pirating subscribers are sufficient to show that the provider had knowledge of copyright-infringing activities.

“It is reasonable to infer that such notices and correspondence gave Defendant enough knowledge to have done something about the alleged direct infringement,” Judge Daniel Domenico wrote.

The order was a clear victory for the filmmakers, who were quick to push ahead. Rather than simply moving the case forward, the plaintiffs sought to expand it, by adding new rightsholders, new piracy tracking companies, and more than 300 additional film titles.

Piracy Lawsuit Expands
The second amended complaint (SAC) raised the stakes significantly. Instead of 57 works, good for maximum statutory damages of roughly $8 million, an expansion to roughly 375 works would increase the statutory maximum to $56 million.

The nature of the claims against WOW didn’t change, however. The movie companies continue to accuse the Internet provider of contributory and vicarious copyright infringement, as well as DMCA violations.

The updated complaint lists several examples of WOW subscribers who, according to the referenced piracy tracking data, repeatedly shared copyright-infringing content including the plaintiffs’ films.

New Motion to Dismiss
Last week, WOW responded to the amended complaint with a new motion to dismiss. The ISP argued that the lawsuit should be dismissed in its entirety, or at least in part, for various reasons.

One key argument is that the 300 new films added to the lawsuit are not backed up by proper evidence. The amended complaint relies on data from tracking company Facterra, which suggests that WOW subscriber IP-addresses shared the works though BitTorrent. That’s not enough, the ISP says.

WOW doesn’t dispute the tracking data itself, but notes that there’s no evidence that it was aware of these alleged infringements. Unlike the initial claims, there’s no evidence that Facterra or anyone else informed WOW about the added infringements.

“Plaintiffs do not allege that Facterra ever sent email ‘notices’ to WOW about those alleged infringements. Nor do Plaintiffs allege any other facts showing that WOW had knowledge of infringement of the New Works,” WOW writes.

screen media dismiss
This is a critical omission, the ISP notes. The court previously highlighted such notices as an important detail to show that WOW was aware of the piracy activities.

“The Court previously relied on Plaintiffs’ allegations regarding copyright notices to find that Plaintiffs had sufficiently alleged the knowledge element of their contributory infringement claims. This is because Plaintiffs do allege that other detection companies — namely, MEU and Irdeto — sent copyright notices to WOW.”

The apparent lack of notices is sufficient to dismiss the copyright infringement claims for the new works, WOW argues. In a similar vein, the associated DMCA violations should be dismissed as well, as it’s not clear when and where these happened.

“Plaintiffs do not allege any facts regarding when the New Works were infringed or when the DMCA was violated with respect to those works. See generally SAC. The SAC therefore fails to give WOW fair notice of Screen Media’s claims,” WOW writes.

New Precedents
In addition to the alleged factual shortcomings, WOW also cites new precedents that favor a dismissal of the complaint. This includes last year’s ‘Twitter vs. Taamneh‘ Supreme Court decision.

In that case, the U.S. Supreme Court held that social media platforms aren’t liable for ISIS terrorists who used their services to recruit and raise funds. In a similar vein, WOW believes that it shouldn’t be held liable for subscribers who pirate content.

“In Twitter, issued shortly after the Court’s Order, the Supreme Court observed that it ‘would run roughshod over the typical limits on tort liability’ to ‘effectively hold any sort of communication provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them’.

“That is precisely what Plaintiffs are attempting to do in this case, by alleging that WOW is secondarily liable because it did not terminate the accounts of accused copyright infringers and DMCA violators,” WOW adds.

Finally, WOW highlights a recent decision in a similar liability lawsuit between record labels and Cox Communication. There, the Fourth Circuit Appeals court held that advertisements for high download speeds, and the availability of infringing content, are not sufficient to be considered a ‘draw’ for potential subscribers.

In the Cox lawsuit, the court dismissed the vicarious liability claim because it failed to see a direct financial interest, and WOW hopes the court will reconsider its earlier views in the same light.

“Because a direct causal connection is required, an ISP’s indirect financial interest in any infringing activity — the periodic fees it receives from customers for internet access — is insufficient as a matter of law,” WOW writes.

All in all, WOW sees plenty of reasons for the Colorado court to reconsider its earlier position. The film companies are yet to reply, however, and they likely have an entirely different take on the matter.