Piracy Liability Lawsuit Against WOW! Survives Dismissal Attempt

In 2021, Colorado-based Internet provider Wide Open West (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 types of lawsuits 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.

$56 million

This initial motion to dismiss was denied by the Colorado federal court. The tone had been set, however, with WOW describing the movie companies and their anti-piracy partners as “copyright trolls”.

Perhaps bolstered by the failed dismissal request, the plaintiffs then sought to expand their case. They added new rightsholders, new piracy tracking companies, and more than 300 additional film titles.

This culminated in a second amended complaint (SAC) that significantly raised the stakes. 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, if WOW was found liable.

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

Motion to Dismiss

Faced with these new and expanded allegations, 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 was that the 300+ newly added films are not backed up by proper evidence. The movie companies rely on data from tracking company Facterra, suggesting that IP-addresses of WOW subscribers shared films though BitTorrent. However, WOW said that there’s no evidence that it was informed about these alleged infringements.

The ISP also cited the ‘Twitter v. Taamneh‘ Supreme Court decision, which was released after its initial motion to dismiss.

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.

Motion Denied

Last Friday, U.S. District judge Daniel Domenico ruled on the motion to dismiss, denying it in its entirety.

The ruling acknowledges that WOW may not have been aware of specific instances of copyright infringement for all 300+ newly added works. However, to state a claim for contributory copyright infringement, the movie companies should show that WOW was aware of pirating subscribers.

Judge Domenico concludes that WOW’s alleged knowledge of widespread infringement by its subscribers, and failure to take action, was sufficient to suggest willful blindness, even if specific instances for each work weren’t documented.

“The complaint alleges that WideOpenWest was notified of over 33,750 specific instances of direct infringement at over 13,000 of its IP addresses […] yet it did not investigate further or take any action to stop continued infringement by the subscriber accounts associated with those IP addresses.”

The Supreme Court’s Twitter v.s Taamneh doesn’t foreclose any of the copyright infringement claims either. That case confirmed that social media companies can’t be held liable for terrorist attacks committed by subscribers away from their platforms. This means that there is no ‘direct nexus’ between Twitter’s conduct, and the attack itself.

In WOW’s case, it can be argued that there is a direct nexus between the pirating activities of subscribers and the ISP’s service. WOW provided the service that was necessary to pirate the movies, and continue doing so after it was alerted about the alleged wrongdoing.

“Twitter does not provide a reason to revisit my previous analysis of the plaintiffs’ allegations regarding secondary liability for copyright infringement or Digital Millennium Copyright Act violations,” Judge Domenico writes.

Reddit Comments

WOW also requested the court to dismiss the vicarious copyright claim, which relies on the allegation that the ISP’s actions acted as a ‘draw’ to those who were interested in pirating content.

WOW highlights a similar case between record labels and Cox Communications. In that matter the Court of Appeals for the Fourth Circuit 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. However, Judge Domenico believes that dismissal would be premature in this case.

Interestingly, the filmmakers support their ‘draw’ argument with allegations that rely heavily on comments from anonymous Reddit users. These public comments suggest that WOW’s actions may have drawn subscribers.

“The plaintiffs allege that at least one subscriber continued using WideOpenWest’s internet service because WideOpenWest is ‘amazing on torrents’ and the subscriber had ‘never gotten a letter or notice’ despite having ‘downloaded truly an outrageous amount of data’.”

“That subscriber recommended WideOpenWest to someone else looking for an internet service provider that is ‘‘less’ strict on downloading’,” Judge Domenico adds.

These and other Reddit comments are sufficient at this stage, so the vicarious copyright infringement claim remains intact. In a footnote, however, the order clarifies that screenshots of Reddit comments need to be backed up with properly admissible evidence at trial.

Moving Forward

This footnote explains why several filmmakers have repeatedly tried to uncover the identities of Redditors in lawsuits against other ISPs. While these publicly available and anonymous comments are self-explanatory, without verification they might not be admissible at trial.

Therefore, it wouldn’t be a surprise if the filmmakers will seek further information from Reddit going forward.

In any case, the lawsuit will move forward in its entirety, with all copyright infringement claims intact.

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A copy of Colorado District Court Judge Daniel Domenico’s order denying the motion to dismiss is available here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.