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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
WARNER RECORDS INC., et al.,
Plaintiffs,
v.

Case No. 1:19-cv-00874-RBJ-MEH

CHARTER COMMUNICATIONS, INC.,
Defendant.
PARTIAL ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS TO
COUNT I OF THE FIRST AMENDED COMPLAINT
PARTIAL ANSWER
Pursuant to the Court’s Order at ECF 141, Defendant Charter Communications, Inc.
(“Defendant” or “Charter”) by and through its counsel, hereby answers the First Amended
Complaint, as to Count I for contributory liability, of Plaintiffs Warner Records Inc., Atlantic
Recording Corporation, Bad Boy Records LLC, Elektra Entertainment Group Inc., Fueled By
Ramen LLC, Lava Records LLC, Maverick Recording Company, Nonesuch Records Inc., The All
Blacks U.S.A., Inc., Warner Music Inc., Warner Records/SIRE Ventures LLC, WEA International
Inc., Warner Chappell Music, Inc., Warner-Tamerlane Publishing Corp., W Chappell Music Corp.
d/b/a WC Music Corp., W.C.M. Music Corp., Unichappell Music Inc., Rightsong Music Inc.,
Cotillion Music, Inc., Intersong U.S.A., Inc., and Chappell & Co. Inc. (collectively, the “Warner
Plaintiffs”); and Plaintiffs Sony Music Entertainment, Arista Music, Arista Records LLC, LaFace
Records LLC, Provident Label Group, LLC, Sony Music Entertainment US Latin, The Century
Family, Inc., Volcano Entertainment III, LLC, and Zomba Recordings LLC (collectively, the
“Sony Music Plaintiffs”); and Plaintiffs Sony/ATV Music Publishing LLC, EMI Al Gallico Music
Corp., EMI Algee Music Corp., EMI April Music Inc., EMI Blackwood Music Inc., Colgems-EMI
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Music Inc., EMI Consortium Music Publishing Inc. d/b/a EMI Full Keel Music, EMI Consortium
Songs, Inc., individually and d/b/a EMI Longitude Music, EMI Entertainment World Inc. d/b/a
EMI Foray Music, EMI Jemaxal Music Inc., EMI Feist Catalog Inc., EMI Miller Catalog Inc.,
EMI Mills Music, Inc., EMI Unart Catalog Inc., EMI U Catalog Inc., Famous Music LLC, Jobete
Music Co. Inc., Stone Agate Music, Screen Gems-EMI Music Inc., and Stone Diamond Music
Corp. (collectively, the “Sony/ATV and EMI Plaintiffs”); and UMG Recordings, Inc., Capitol
Records, LLC, Universal Music Corp., Universal Music – MGB NA LLC, Universal Music
Publishing Inc., Universal Music Publishing AB, Universal Music Publishing Limited, Universal
Music Publishing MGB Limited, Universal Music – Z Tunes LLC, Universal/Island Music
Limited, Universal/MCA Music Limited, Universal/MCA Music Publishing Pty. Limited, Music
Corporation of America, Inc., Musik Edition Discoton GmbH, PolyGram Publishing, Inc., and
Songs of Universal, Inc. (collectively, the “Universal Plaintiffs,” and with the Warner Plaintiffs,
Sony Music Plaintiffs, and Sony/ATV and EMI Plaintiffs, the “Plaintiffs”), dated February 14,
2020 (the “First Amended Complaint”), as follows:
INTRODUCTION 1
1.

Plaintiffs are record companies that produce, manufacture, distribute, sell, and

license commercial sound recordings, and music publishers that acquire, license, and otherwise
exploit musical compositions, both in the United States and internationally. Through their
enormous investments of money, time, and exceptional creative efforts, Plaintiffs and their
representative recording artists and songwriters have developed and marketed some of the world’s
most famous and popular music. Plaintiffs own and/or control exclusive rights to the copyrights to

1

For the Court’s convenience, Defendant reproduced the headings from the First Amended
Complaint. Defendant does not thereby concede, affirm, or otherwise adopt any of those
headings.
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some of the most famous sound recordings performed by classic artists and contemporary
superstars, as well as the copyrights to large catalogs of iconic musical compositions and modern
hit songs. Their investments and creative efforts have shaped the musical landscape as we know
it, both in the United States and around the world.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 1 of the First Amended Complaint and on that basis denies those
allegations.
2.

Charter is one of the largest Internet service providers (“ISPs”) in the country. It

markets and sells high-speed Internet services to consumers nationwide. Through the provision of
those services, Charter has knowingly contributed to, and reaped substantial profits from, massive
copyright infringement committed by thousands of its subscribers, causing great harm to Plaintiffs,
their recording artists and songwriters, and others whose livelihoods depend upon the lawful
acquisition of music. Charter’s contribution to its subscribers’ infringement is both willful and
extensive, and renders Charter equally liable. Indeed, for years, Charter deliberately refused to
take reasonable measures to curb customers from using its Internet services to infringe on others’
copyrights, including Plaintiffs’ copyrights—even after Charter became aware of particular
customers engaging in specific, repeated acts of infringement. Plaintiffs’ representatives (as well
as others) sent hundreds of thousands of statutory infringement notices to Charter, under penalty
of perjury. Those notices advised Charter of its subscribers’ blatant and systematic use of Charter’s
Internet service to illegally download, copy, and distribute Plaintiffs’ copyrighted music through
BitTorrent and other online file-sharing services. Rather than working with Plaintiffs to curb this
massive infringement, Charter did nothing, choosing to prioritize its own profits over its legal
obligations.

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Answer:

Defendant admits that Charter operates as an Internet service provider, and

markets and sells high-speed Internet services to consumers. Defendant admits that it received
notices of alleged infringement from third parties, but lacks knowledge or information as to
whether and which of these notices were sent on behalf of which Plaintiffs, whether such notices
complied with statutory requirements, and whether they were made under penalty of perjury, and
on that basis, Charter denies those allegations. Defendant denies the remaining allegations in
Paragraph 2 of the First Amended Complaint.
3.

It is well-established law that a party may not assist someone it knows is engaging

in copyright infringement. Further, when a party has a direct financial interest in the infringing
activity, and the right and practical ability to stop or limit it, that party must act. Ignoring and
flouting those basic responsibilities, Charter deliberately turned a blind eye to its subscribers’
infringement. Charter failed to terminate or otherwise take meaningful action against the accounts
of repeat infringers of which it was aware. Despite its professed commitment to taking action
against repeat offenders, Charter routinely thumbed its nose at Plaintiffs by continuing to provide
service to subscribers it knew to be serially infringing copyrighted sound recordings and musical
compositions. In reality, Charter operated its service as an attractive tool and safe haven for
infringement.
Answer:

The first two sentences of Paragraph 3 of the First Amended Complaint

constitute Plaintiffs’ characterization of copyright law and legal conclusions to which Defendant
is not obligated to respond. Defendant denies the remaining allegations of Paragraph 3 of the
Complaint.
4.

Charter has derived an obvious and direct financial benefit from its customers’

infringement. The unlimited ability to download and distribute Plaintiffs’ works through Charter’s

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service has served as a draw for Charter to attract, retain, and charge higher fees to subscribers. By
failing to terminate the accounts of specific recidivist infringers known to Charter, Charter
obtained a direct financial benefit from its subscribers’ continuing infringing activity. That
financial benefit included improper revenue that it would not have received had it appropriately
shut down those accounts. Charter decided not to terminate infringers because it wanted to
maintain the revenue that is generated from their accounts.
Answer:

Defendant denies the allegations in Paragraph 4 of the First Amended

Complaint.
5.

The infringing activity of Charter’s subscribers that is the subject of Plaintiffs’

claims, and for which Charter is secondarily liable, occurred after Charter received multiple notices
of each subscriber’s infringing activity. Specifically, Plaintiffs seek relief for claims that accrued
between March 24, 2013 and May 17, 2016 for infringement of works by Charter subscribers after
those particular subscribers were identified to Charter in multiple infringement notices. 2 These
claims have been preserved through tolling agreements entered into with Charter in March, April,
and June 2016, as applicable.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations of Paragraph 5 of the First Amended Complaint regarding the nature of Plaintiffs’
claims, but denies that Plaintiffs are entitled to any relief, including for any period of time.
Defendant admits that they entered into tolling agreements with certain of the Plaintiffs, but denies
that those tolling agreements preserved all of Plaintiffs’ claims. Defendant denies the remaining
allegations of Paragraph 5 of the First Amended Complaint.
2

Specifically, the Universal Plaintiffs seek relief for claims that accrued on or after March 24,
2013; the Sony Music Plaintiffs and Warner Plaintiffs seek relief for claims that accrued on or
after April 18, 2013; and the Sony/ATV and EMI Plaintiffs seek relief for claims that accrued on
or after June 15, 2013.
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NATURE OF ACTION
6.

This is a civil action in which Plaintiffs seek damages for copyright infringement

under the Copyright Act, 17 U.S.C. § 101, et seq.
Answer:

Defendant admits that Plaintiffs have filed this action under the copyright

laws of the United States, but denies that there has been any wrongdoing.
7.

This Court has original subject matter jurisdiction over Plaintiffs’ copyright

infringement claims pursuant to 28 U.S.C. §§ 1331 and 1338(a).
Answer:

Defendant admits that this Court has subject matter jurisdiction over

Plaintiffs’ claims.
8.

This Court has personal jurisdiction over Charter pursuant to Colo. Rev. Stat. § 13-

1-124. Charter continuously and systematically transacts business in Colorado and maintains
sizable operations in the state—employing thousands of people, and providing an array of services
to customers, within the state. In addition to its physical presence in the state, Charter has
deliberately exploited the Colorado market, establishing significant network management
operations in this district, selling its services to over 100,000 Colorado customers, and advertising
its “blazing-fast Internet speeds” to potential subscribers in the state.
Answer:

Defendant admits that Charter conducts business in Colorado, has

employees in Colorado, provides services to customers in Colorado, and maintains network
management operations in Colorado. Defendant denies the remaining allegations in Paragraph 8
of the First Amended Complaint.
9.

Moreover, Charter has engaged in substantial activities purposefully directed at

Colorado from which Plaintiffs’ claims arise, including providing Internet service to Colorado
subscribers who used Charter’s network to directly and repeatedly infringe Plaintiffs’ copyrights;
continuing to provide Internet service to, and failing to suspend or terminate the accounts of,
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Colorado customers, even after receiving multiple notices of their infringing activity; advertising
its high-speed Internet services in Colorado to serve as a draw for subscribers who sought faster
download speeds to facilitate their direct and repeated infringements; employing individuals within
Colorado with responsibility for overseeing its network and subscriber use policies; and/or
responding or failing to respond to repeated notices of copyright infringement directed to
infringing subscribers located in the state.
Answer:

Defendant admits that it conducts business in Colorado. Defendant denies

that there has been any unlawful conduct giving rise to the claims in this case. Defendant denies
the remaining allegations in Paragraph 9 of the First Amended Complaint.
10.

Much of the misconduct alleged in this Complaint arises directly from Charter’s

forum-directed activities—specifically, repeated acts of infringement by specific subscribers using
Charter’s network; Charter’s awareness of those activities; Charter’s receipt of and failure to act
in response to Plaintiffs’ notices of infringement; and Charter’s failure to take reasonable measures
to terminate repeat infringers.
Answer:

Defendant denies that there has been any unlawful conduct giving rise to

the claims in this case. Defendant lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 10 regarding the residence or location of any alleged infringers, and on
that basis denies the allegation. Defendant denies the remaining allegations in Paragraph 10 of the
First Amended Complaint.
11.

Many of the acts complained of herein occurred in Colorado and in this judicial

district. For example, a number of egregious repeat infringers who are Charter subscribers reside
in and infringed Plaintiffs’ rights in Colorado and this judicial district, using Internet service
provided by Charter in the state. Indeed, Plaintiffs have identified over a hundred Charter

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subscribers who appear to reside in Colorado and who have repeatedly infringed Plaintiffs’
copyrighted works. For example, one Charter subscriber believed to be located in Grand Junction,
Colorado, with the IP address 72.175.144.149 at the time of the infringing conduct, was identified
in infringement notices 63 times between June 26, 2014 and September 28, 2014. Another Charter
subscriber believed to be located in Grand Junction, Colorado, with the IP address 98.127.105.135
at the time of infringement, was identified in infringement notices 54 times between May 29, 2014
and March 29, 2015. Yet another Charter subscriber believed to be located in Montrose, Colorado,
with the IP address 184.167.217.19 at the time of infringement, was identified in infringement
notices 53 times between September 11, 2014 and January 12, 2015. Still another Charter
subscriber believed to be located in Canon City, Colorado, with the IP address 72.174.161.193 at
the time of infringement, was identified in infringement notices 50 times between October 1, 2014
and March 29, 2015.
Answer:

Defendant denies that there has been any unlawful conduct giving rise to

the claims in this case. Defendant lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 11 regarding the residence, location or identity of any alleged infringers,
and on that basis denies the allegation. Defendant denies the remaining allegations in Paragraph
11.
12.

Venue is proper in this district under 28 U.S.C. §§ 1391(b) and (c), and 1400(a). A

substantial part of the acts of infringement, and other events and omissions complained of herein,
occur or have occurred in this district, and this is a district in which Charter resides or may be
found.
Answer:

Defendant denies that there has been any unlawful conduct giving rise to

the claims in this case. Defendant lacks knowledge or information sufficient to admit or deny the

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allegations in Paragraph 12 regarding the residence or location of any alleged infringers, and on
that basis denies the allegation. Paragraph 12 contains legal conclusions to which no response is
required. To the extent that a response is required, Defendant denies the remaining allegations of
Paragraph 12.
PLAINTIFFS AND THEIR COPYRIGHTED MUSIC
13.

Plaintiffs are the copyright owners of, and/or control exclusive rights with respect

to, millions of sound recordings (i.e., recorded music) and/or musical compositions (i.e., the songs
embodied in sound recordings), including by some of the most prolific and well-known
songwriters and recording artists throughout the world.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 13 of the First Amended Complaint and on that basis denies those
allegations.
14.

Plaintiff Warner Records Inc. (f/k/a Warner Bros. Records Inc.) (“WRI”) is a

Delaware corporation with its principal place of business at 777 South Santa Fe Avenue, Los
Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 14 of the First Amended Complaint and on that basis denies those
allegations.
15.

Plaintiff Atlantic Recording Corporation (“Atlantic”) is a Delaware corporation

with its principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 15 of the First Amended Complaint and on that basis denies those
allegations.

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16.

Plaintiff Bad Boy Records LLC (“Bad Boy”) is a Delaware Limited Liability

Company with its principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 16 of the First Amended Complaint and on that basis denies those
allegations.
17.

Plaintiff Elektra Entertainment Group Inc. (“Elektra”) is a Delaware corporation

with its principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 17 of the First Amended Complaint and on that basis denies those
allegations.
18.

Plaintiff Fueled By Ramen LLC (“FBR”) is a Delaware Limited Liability Company

with its principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 18 of the First Amended Complaint and on that basis denies those
allegations.
19.

Plaintiff Lava Records LLC (“Lava”) is a Delaware Limited Liability Company

with its principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 19 of the First Amended Complaint and on that basis denies those
allegations.
20.

Plaintiff Maverick Recording Company (“Maverick”) is a California general

partnership, with its principal place of business at 777 South Santa Fe Avenue, Los Angeles,
California 90021.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 20 of the First Amended Complaint and on that basis denies those
allegations.
21.

Plaintiff Nonesuch Records Inc. (“Nonesuch”) is a Delaware corporation with its

principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 21 of the First Amended Complaint and on that basis denies those
allegations.
22.

Plaintiff The All Blacks U.S.A., Inc. (“The All Blacks”) is a Delaware corporation

with its principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 22 of the First Amended Complaint and on that basis denies those
allegations.
23.

Plaintiff Warner Music Inc. (“Warner Music”) is a Delaware corporation with its

principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 23 of the First Amended Complaint and on that basis denies those
allegations.
24.

Plaintiff Warner Records/SIRE Ventures LLC (“Warner Records/SIRE”) is a

Delaware Limited Liability Company with its principal place of business at 777 South Santa Fe
Avenue, Los Angeles, California 90021.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 24 of the First Amended Complaint and on that basis denies those
allegations.
25.

Plaintiff WEA International Inc. (“WEA”) is a Delaware corporation with its

principal place of business at 1633 Broadway, New York, New York 10019.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 25 of the First Amended Complaint and on that basis denies those
allegations.
26.

Plaintiff Sony Music Entertainment (“Sony”) is a Delaware general partnership, the

partners of which are citizens of New York and Delaware. Sony’s headquarters and principal place
of business are located at 25 Madison Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 26 of the First Amended Complaint and on that basis denies those
allegations.
27.

Plaintiff Arista Music (“Arista Music”) is a New York partnership with its principal

place of business at 25 Madison Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 27 of the First Amended Complaint and on that basis denies those
allegations.
28.

Plaintiff Arista Records LLC (“Arista Records”) is a Delaware Limited Liability

Company with its principal place of business at 25 Madison Avenue, New York, New York 10010.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 28 of the First Amended Complaint and on that basis denies those
allegations.
29.

Plaintiff LaFace Records LLC (“LaFace”) is a Delaware Limited Liability

Company with its principal place of business at 25 Madison Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 29 of the First Amended Complaint and on that basis denies those
allegations.
30.

Plaintiff Provident Label Group, LLC (“Provident”) is a Delaware Limited

Liability Company with its principal place of business at 741 Cool Springs Boulevard, Franklin,
Tennessee 37067.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 30 of the First Amended Complaint and on that basis denies those
allegations.
31.

Plaintiff Sony Music Entertainment US Latin (“Sony Latin”) is a Delaware Limited

Liability Company with its principal place of business at 3390 Mary Street, Suite 220, Coconut
Grove, Florida 33133.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 31 of the First Amended Complaint and on that basis denies those
allegations.
32.

Plaintiff The Century Family, Inc. (“Century”) is a California corporation with its

principal place of business at 12706 West Washington Boulevard, Culver City, California 90066.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 32 of the First Amended Complaint and on that basis denies those
allegations.
33.

Plaintiff Volcano Entertainment III, LLC (“Volcano”) is a Delaware Limited

Liability Company with its principal place of business at 25 Madison Avenue, New York, New
York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 33 of the First Amended Complaint and on that basis denies those
allegations.
34.

Plaintiff Zomba Recording LLC (“Zomba”) is a Delaware Limited Liability

Company with its principal place of business at 25 Madison Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 34 of the First Amended Complaint and on that basis denies those
allegations.
35.

Plaintiff UMG Recordings, Inc. (“UMG”) is a Delaware corporation with its

principal place of business at 2220 Colorado Avenue, Santa Monica, California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 35 of the First Amended Complaint and on that basis denies those
allegations.
36.

Plaintiff Capitol Records, LLC (“Capitol Records”) is Delaware Limited Liability

Company with its principal place of business at 1750 N. Vine Street, Los Angeles, California
90068.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 36 of the First Amended Complaint and on that basis denies those
allegations.
37.

Plaintiffs WRI, Atlantic, Bad Boy, Elektra, FBR, Lava, Maverick, Nonesuch, The

All Blacks, Warner Music, Warner Records/SIRE, WEA, Sony, Arista Music, Arista Records,
LaFace, Provident, Sony Latin, Century, Volcano, Zomba, UMG, and Capitol Records are referred
to herein collectively as the “Record Company Plaintiffs.”.
Answer:

Paragraph 37 of the Complaint does not contain factual allegations to which

Defendant is obligated to respond.
38.

The Record Company Plaintiffs are some of the largest record companies in the

world, engaged in the business of producing, manufacturing, distributing, selling, licensing, and
otherwise exploiting sound recordings in the United States through various media. They invest
substantial money, time, effort, and talent in creating, advertising, promoting, selling, and licensing
unique and valuable sound recordings embodying the performances of their exclusive recording
artists.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 38 of the First Amended Complaint and on that basis denies those
allegations.
39.

Plaintiff Warner Chappell Music, Inc. (f/k/a Warner/Chappell Music, Inc.)

(“Warner Chappell”) is a Delaware corporation with its principal place of business at 777 South
Santa Fe Avenue, Los Angeles, California 90021.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 39 of the First Amended Complaint and on that basis denies those
allegations.
40.

Plaintiff Warner-Tamerlane Publishing Corp. (“Warner-Tamerlane”) is a

California corporation with its principal place of business at 777 South Santa Fe Avenue, Los
Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 40 of the First Amended Complaint and on that basis denies those
allegations.
41.

Plaintiff W Chappell Music Corp. d/b/a WC Music Corp. (f/k/a WB Music Corp).

(“WC Music”) is a California corporation with its principal place of business at 777 South Santa
Fe Avenue, Los Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 41 of the First Amended Complaint and on that basis denies those
allegations.
42.

Plaintiff W.C.M. Music Corp. (f/k/a W.B.M. Music Corp.) (“W.C.M.”) is a

Delaware corporation with its principal place of business at 777 South Santa Fe Avenue, Los
Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 42 of the First Amended Complaint and on that basis denies those
allegations.
43.

Plaintiff Unichappell Music Inc. (“Unichappell”) is a Delaware corporation with its

principal place of business at 777 South Santa Fe Avenue, Los Angeles, California 90021.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 43 of the First Amended Complaint and on that basis denies those
allegations.
44.

Plaintiff Rightsong Music Inc. (“Rightsong Music”) is a Delaware corporation with

its principal place of business at 777 South Santa Fe Avenue, Los Angeles, California 90021.
Plaintiff Cotillion Music, Inc. (“Cotillion”) is a Delaware corporation with its principal place of
business at 777 South Santa Fe Avenue, Los Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 44 of the First Amended Complaint and on that basis denies those
allegations.
45.

Plaintiff Intersong U.S.A., Inc. (“Intersong”) is a Delaware corporation with its

principal place of business at 777 South Santa Fe Avenue, Los Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 45 of the First Amended Complaint and on that basis denies those
allegations.
46.

Chappell & Co. Inc. (“Chappell”) is a Delaware corporation with its principal place

of business at 777 South Santa Fe Avenue, Los Angeles, California 90021.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 46 of the First Amended Complaint and on that basis denies those
allegations.
47.

Plaintiff Sony/ATV Music Publishing LLC (“Sony/ATV”) is a Delaware Limited

Liability Company with its principal place of business at 25 Madison Avenue, New York, New
York 10010.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 47 of the First Amended Complaint and on that basis denies those
allegations.
48.

Plaintiff EMI Al Gallico Music Corp. (“EMI Al Gallico”), an affiliate of

Sony/ATV, is a Delaware corporation with its principal place of business at 25 Madison Avenue,
New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 48 of the First Amended Complaint and on that basis denies those
allegations.
49.

Plaintiff EMI Algee Music Corp. (“EMI Algee”), an affiliate of Sony/ATV, is a

Delaware corporation with its principal place of business at 25 Madison Avenue, New York, New
York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 49 of the First Amended Complaint and on that basis denies those
allegations.
50.

Plaintiff EMI April Music Inc. (“EMI April”), an affiliate of Sony/ATV, is a

Connecticut corporation with its principal place of business at 25 Madison Avenue, New York,
New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 50 of the First Amended Complaint and on that basis denies those
allegations.

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51.

Plaintiff EMI Blackwood Music Inc. (“EMI Blackwood”), an affiliate of

Sony/ATV, is a Connecticut corporation with its principal place of business at 25 Madison
Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 51 of the First Amended Complaint and on that basis denies those
allegations.
52.

Plaintiff Colgems-EMI Music Inc. (“EMI Colgems”), an affiliate of Sony/ATV, is

a Delaware corporation with its principal place of business at 25 Madison Avenue, New York,
New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 52 of the First Amended Complaint and on that basis denies those
allegations.
53.

Plaintiff EMI Consortium Music Publishing Inc. d/b/a EMI Full Keel Music (“EMI

Full Keel”), an affiliate of Sony/ATV, is a New York corporation with its principal place of
business at 25 Madison Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 53 of the First Amended Complaint and on that basis denies those
allegations.
54.

Plaintiff EMI Consortium Songs, Inc., individually and d/b/a EMI Longitude Music

(“EMI Longitude”), an affiliate of Sony/ATV, is a New York corporation with its principal place
of business at 25 Madison Avenue, New York, New York 10010.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 54 of the First Amended Complaint and on that basis denies those
allegations.
55.

EMI Entertainment World Inc. d/b/a EMI Foray Music (“EMI Entertainment”), an

affiliate of Sony/ATV, is a Delaware corporation with its principal place of business at 25 Madison
Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 55 of the First Amended Complaint and on that basis denies those
allegations.
56.

EMI Jemaxal Music Inc. (“EMI Jemaxal”), an affiliate of Sony/ATV, is a Delaware

corporation with its principal place of business at 25 Madison Avenue, New York, New York
10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 56 of the First Amended Complaint and on that basis denies those
allegations.
57.

Plaintiff EMI Feist Catalog Inc. (“EMI Feist”), an affiliate of Sony/ATV, is a New

York corporation with its principal place of business at 25 Madison Avenue, New York, New York
10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 57 of the First Amended Complaint and on that basis denies those
allegations.

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58.

Plaintiff EMI Miller Catalog Inc. (“EMI Miller”), an affiliate of Sony/ATV, is a

New York corporation with its principal place of business at 25 Madison Avenue, New York, New
York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 58 of the First Amended Complaint and on that basis denies those
allegations.
59.

Plaintiff EMI Mills Music, Inc. (“EMI Mills”), an affiliate of Sony/ATV, is a

Delaware corporation with its principal place of business at 25 Madison Avenue, New York, New
York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 59 of the First Amended Complaint and on that basis denies those
allegations.
60.

Plaintiff EMI Unart Catalog Inc. (“EMI Unart”), an affiliate of Sony/ATV, is a New

York corporation with its principal place of business at 25 Madison Avenue, New York, New York
10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 60 of the First Amended Complaint and on that basis denies those
allegations.
61.

Plaintiff EMI U Catalog Inc. (“EMI U”), an affiliate of Sony/ATV, is a New York

corporation with its principal place of business at 25 Madison Avenue, New York, New York
10010.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 61 of the First Amended Complaint and on that basis denies those
allegations.
62.

Plaintiff Famous Music LLC (“Famous Music”) is a Delaware Limited Liability

Company with its principal place of business at 25 Madison Avenue, New York, New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 62 of the First Amended Complaint and on that basis denies those
allegations.
63.

Plaintiff Jobete Music Co. Inc. (“Jobete”), an affiliate of Sony/ATV, is a Michigan

corporation with its principal place of business at 25 Madison Avenue, New York, New York
10010. Plaintiff Stone Agate Music (“Stone Agate”) is a division of Jobete.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 64 of the First Amended Complaint and on that basis denies those
allegations.
64.

Plaintiff Screen Gems-EMI Music Inc. (“Gems-EMI”), an affiliate of Sony/ATV,

is a Delaware corporation with its principal place of business at 25 Madison Avenue, New York,
New York 10010.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 64 of the First Amended Complaint and on that basis denies those
allegations.
65.

Plaintiff Stone Diamond Music Corp. (“Stone”), an affiliate of Sony/ATV, is a

Michigan corporation with its principal place of business at 25 Madison Avenue, New York, New
York 10010.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 65 of the First Amended Complaint and on that basis denies those
allegations.
66.

Plaintiff Universal Music Corp. (“UMC”) is a California corporation with its

principal place of business at 2100 Colorado Avenue, Santa Monica, California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 66 of the First Amended Complaint and on that basis denies those
allegations.
67.

Plaintiff Universal Music – MGB NA LLC (“MGB”) is a California Limited

Liability Company with its principal place of business at 2100 Colorado Avenue, Santa Monica,
California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 67 of the First Amended Complaint and on that basis denies those
allegations.
68.

Plaintiff Universal Music Publishing Inc. (“Universal Music Publishing”) is a

California corporation with its principal place of business at 2100 Colorado Avenue, Santa
Monica, California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 68 of the First Amended Complaint and on that basis denies those
allegations.
69.

Plaintiff Universal Music Publishing AB (“AB”) is a company organized under the

laws of Sweden.

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Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 69 of the First Amended Complaint and on that basis denies those
allegations.
70.

Plaintiff Universal Music Publishing Limited (“Publishing Limited”) is a company

incorporated under the laws of England and Wales.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 70 of the First Amended Complaint and on that basis denies those
allegations.
71.

Plaintiff Universal Music Publishing MGB Limited (“MGB Limited”) is a

company incorporated under the laws of England and Wales.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 71 of the First Amended Complaint and on that basis denies those
allegations.
72.

Plaintiff Universal Music – Z Tunes LLC (“Z Tunes”) is a California corporation

with its principal place of business at 2100 Colorado Avenue, Santa Monica, California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 72 of the First Amended Complaint and on that basis denies those
allegations.
73.

Plaintiff Universal/Island Music Limited (“Island”) is a company incorporated

under the laws of England and Wales.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 73 of the First Amended Complaint and on that basis denies those
allegations.

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74.

Plaintiff Universal/MCA Music Limited (“MCA Limited”) is a company

incorporated under the laws of England and Wales.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 74 of the First Amended Complaint and on that basis denies those
allegations.
75.

Plaintiff Universal/MCA Music Publishing Pty. Limited (“MCA Publishing

Limited”) is a company organized under the laws of the Australia.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 75 of the First Amended Complaint and on that basis denies those
allegations.
76.

Plaintiff Music Corporation of America, Inc. (“Music Corp.”) is a California

corporation with its principal place of business at 2100 Colorado Avenue, Santa Monica,
California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 76 of the First Amended Complaint and on that basis denies those
allegations.
77.

Plaintiff Musik Edition Discoton GmbH (“Musik Edition”) is a company

incorporated under the laws of Germany.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 77 of the First Amended Complaint and on that basis denies those
allegations.

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78.

Plaintiff Polygram Publishing, Inc. (“Polygram Publishing”) is a California

corporation with its principal place of business at 2100 Colorado Avenue, Santa Monica,
California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 78 of the First Amended Complaint and on that basis denies those
allegations.
79.

Plaintiff Songs of Universal, Inc. (“Songs of Universal”) is a California corporation

with its principal place of business at 2100 Colorado Avenue, Santa Monica, California 90404.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 79 of the First Amended Complaint and on that basis denies those
allegations.
80.

Plaintiffs Warner Chappell, Warner-Tamerlane, WC Music, W.C.M., Unichappell,

Rightsong Music, Cotillion, Intersong, Chappell, Sony/ATV, EMI Al Gallico, EMI Algee, EMI
April, EMI Blackwood, EMI Colgems, EMI Full Keel, EMI Longitude, EMI Entertainment, EMI
Jemaxal, EMI Feist, EMI Miller, EMI Mills, EMI Unart, EMI U, Famous Music, Jobete, Stone
Agate, Gems-EMI, Stone, UMC, MGB, Universal Music Publishing, AB, Publishing Limited,
MGB Limited, Z Tunes, Island, MCA Limited, MCA Publishing Limited, Music Corp., Musik
Edition, Polygram Publishing, and Songs of Universal are referred to herein collectively as the
“Music Publisher Plaintiffs.”
Answer:

Paragraph 80 of the First Amended Complaint does not contain factual

allegations to which Defendant is obligated to respond.
81.

The Music Publisher Plaintiffs are leading music publishers engaged in the business

of acquiring, owning, publishing, licensing, and otherwise exploiting copyrighted musical

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compositions. Each invests substantial money, time, effort, and talent to acquire, administer,
publish, license, and otherwise exploit such copyrights, on its own behalf and on behalf of
songwriters and others who have assigned exclusive copyright interests to the Music Publisher
Plaintiffs.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 81 of the First Amended Complaint and on that basis denies those
allegations.
82.

Plaintiffs own and/or control in whole or in part the copyrights and/or exclusive

rights in innumerable popular sound recordings and musical compositions, including the sound
recordings listed on Exhibit A and musical compositions listed on Exhibit B, both of which are
illustrative and non-exhaustive. All of the sound recordings and musical compositions listed on
Exhibits A and B have been registered with the U.S. Copyright Office.
Answer:

Defendant admits that Exhibits A and B to the Complaint purport to list the

works alleged by Plaintiffs in this action. Defendant lacks knowledge or information sufficient to
admit or deny the remaining allegations of Paragraph 82 of the First Amended Complaint and on
that basis denies those allegations.
CHARTER AND ITS ACTIVITIES
83.

Defendant Charter Communications, Inc. is a Delaware corporation, with its

principal place of business at 400 Atlantic Street, Stamford, Connecticut 06901. Charter also
maintains substantial operations and offices in Colorado, including in Greenwood Village,
Colorado.
Answer:

Defendant admits that Charter Communications, Inc. is a Delaware

corporation but denies the remaining allegations in the first sentence in Paragraph 83 of the

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Complaint. Defendant admits that Charter Communications, Inc. operates an office in Colorado
but denies the remaining allegations in Paragraph 83 of the Complaint.
84.

Charter is one of the largest ISPs in the country. In 2015, Charter had more than 5

million subscribers and today has more than 22 million subscribers. At all pertinent times,
Charter’s customers, including those in Colorado, have paid substantial subscription fees for
access to its high-speed Internet network, with Charter offering a tiered pricing structure whereby
a subscriber can have even higher downloading speeds for a higher monthly fee.
Answer:

Defendant admits that Charter operates as an Internet service provider.

Defendant admits that, during the time period relevant to Plaintiffs’ allegations, Charter offered
various products at different price points. Defendant admits that during 2015, it had approximately
6.7 million subscribers. Defendant admits that as of December 2019, it had approximately 29.2
subscribers. Defendant denies the remaining allegations in Paragraph 84 of the First Amended
Complaint.
85.

Many of Charter’s customers are motivated to subscribe to Charter’s service

because it allows them to download music and other copyrighted content—including unauthorized
content—as efficiently as possible. Accordingly, in its consumer marketing material, including
material directed to Colorado customers, Charter has touted how its service enables subscribers to
download and upload large amounts of content at “blazing-fast Internet speeds.” Charter has told
existing and prospective customers that its high-speed service enables subscribers to “download
just about anything instantly,” and subscribers have the ability to “download 8 songs in 3 seconds.”
Charter has further told subscribers that its Internet service “has the speed you need for everything
you do online.” In exchange for this service, Charter has charged its customers monthly fees
ranging in price based on the speed of service.

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Answer:

Defendant admits that, during the time period relevant to Plaintiffs’

allegations, Charter offered various products at different price points. Defendant denies the
remaining allegations in Paragraph 85 of the First Amended Complaint.
86.

At the same time, Charter has consistently and actively engaged in network

management practices to suit its own purposes. This includes monitoring for, and taking action
against unwanted activity that might otherwise interfere with its provision of Internet service to its
subscribers. But Charter has gone out of its way not to take action against subscribers engaging in
repeated copyright infringement, for its own financial benefit and at the expense of the underlying
owners and controllers of copyright interests, including Plaintiffs, ultimately forcing Plaintiffs to
bring this litigation.
Answer:

Defendant denies the allegations in Paragraph 86 of the First Amended

Complaint.
87.

At all pertinent times, Charter knew that its subscribers routinely used its networks

for illegally downloading and uploading copyrighted works, especially music. As described below,
Plaintiffs repeatedly notified Charter that many of its subscribers were actively utilizing its service
to infringe their works. Those notices gave Charter the specific identities of its infringing
subscribers, referred to by their unique Internet Protocol (or “IP”) addresses. Yet Charter
persistently turned a blind eye to the massive infringement of Plaintiffs’ works occurring over its
network. Charter condoned the illegal activity because it was popular with subscribers and acted
as a draw to attract and retain new and existing subscribers. Charter’s customers, in turn, purchased
more bandwidth and continued using Charter’s services to infringe Plaintiffs’ copyrights. Charter
undoubtedly recognized that if it terminated or otherwise prevented repeat infringer subscribers
from using its service to infringe, or made it less attractive for such use, Charter would enroll fewer

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new subscribers, lose existing subscribers, and ultimately lose revenue. For those account holders
and subscribers who wanted to download files illegally at faster speeds, Charter obliged them in
exchange for higher rates. In other words, the greater the bandwidth its subscribers required for
pirating content, the more money Charter made.
Answer:

Defendant denies the allegations in Paragraph 87 of the First Amended

Complaint.
THE GLOBAL P2P PIRACY PROBLEM
General Landscape
88.

While the digital age has brought many benefits, one notable exception is its

facilitation of unprecedented online piracy of music and other copyrighted works. As the Supreme
Court has recognized, the level of copyright infringement on the Internet is “staggering.” MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 923 (2005).
Answer:

Defendant admits that Paragraph 88 includes an accurate one-word quote

from the Supreme Court of the United States, but Defendant denies the allegations in Paragraph
88 of the Complaint that reflect the characterization of the Supreme Court’s opinion on the basis
that the opinion of the Supreme Court speaks for itself. Defendant denies the remaining allegations
in Paragraph 88 of the First Amended Complaint.
89.

Use of peer-to-peer (“P2P”) distribution systems has dominated unauthorized

downloading and distribution of copyrighted music. P2P is a generic term used to refer to a
decentralized network of users whereby each Internet-connected participant (i.e., a “peer” or a
“node”) can act as both a supplier and consumer of content files. Early P2P services, such as
Napster and KaZaA, have been replaced by even more robust and efficient systems, most notably
a protocol called “BitTorrent.” The online piracy committed via BitTorrent is stunning in nature,
speed, and scope. Utilizing a BitTorrent client—essentially a tool that manages the uploading and
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downloading of files through BitTorrent technology—persons connected to the Internet can locate,
access, and download copyrighted content from other peers in the blink of an eye. They download
copyrighted music from other network users, usually total strangers, and end up with complete
digital copies of any music they desire—including entire catalogues of music—without payment
to copyright owners or creators.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 89 of the First Amended Complaint, and on that basis denies those
allegations.
90.

BitTorrent is uniquely efficient in the way it facilitates illegal file transfers. On

earlier P2P networks, a user wanting to download a music file would have to locate another
Internet-connected peer with the desired file and download the entire file from that peer. BitTorrent
facilitates much faster downloading by breaking each file into pieces, allowing users to download
different pieces of content simultaneously from different peers. At the same time, the system
allows users to begin disseminating the copyrighted content before the complete file has even
downloaded. This means that, at any given time, each user connected to the Internet can be both
downloading and uploading different pieces of a file from, and to, multiple other users. Once a
user has downloaded all the pieces, the file is automatically reassembled into its complete form
and available for playback by the user. Needless to say, acquiring copyrighted music in this fashion
eliminates the need to obtain it through legitimate channels and eliminates the requirement of
paying a fee.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 90 of the First Amended Complaint, and on that basis denies those
allegations.

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91.

Not surprisingly, then, during the time period in which the claims in this action

arose, BitTorrent was used widely as a vehicle to infringe content online. In a report from January
2011, a survey conducted by the firm Envisional estimated that 11.4 percent of all Internet traffic
involved the unauthorized distribution of non-pornographic copyrighted content via BitTorrent. In
a report from September 24, 2013, another company, NetNames, estimated that 99.97 percent of
non-pornographic files distributed via BitTorrent systems infringe copyrights. To illustrate, in one
well-publicized incident in 2015, millions of individual BitTorrent users downloaded an episode
of HBO’s “Game of Thrones” within just 24 hours of its airing.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in the first or third sentences in Paragraph 91 of the First Amended Complaint, and on
that basis denies those allegations. Defendant denies the remaining allegations in Paragraph 91 of
the First Amended Complaint, and where the allegations in Paragraph 91 refer to reports,
Defendant refers the Court to those reports for an accurate rendition of their contents.
Plaintiffs’ Enforcement Activities and Charter’s Efforts to Thwart Them
92.

Over the past two decades, as P2P piracy became widespread, music and other

copyright owners have employed litigation and other means to attempt to curtail the massive theft
of their copyrighted works. Charter has been keenly aware of those efforts and the use of its
network for P2P piracy, including the specific identities of subscribers using its network to infringe
Plaintiffs’ works.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in the first sentence of Paragraph 92 of the First Amended Complaint, and on that basis
denies those allegations. Defendant denies the remaining allegations in Paragraph 92 of the First
Amended Complaint.

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93.

Indeed, Charter knew subscribers were using its network for such infringing

activities as early as 2003. A number of record companies, including some of the Record Company
Plaintiffs, initiated a multi-year effort to enforce their copyrights against persons using P2P
systems to infringe copyrighted musical works directly. Because the copyright holders could only
determine the unique IP addresses of an ISP’s infringing subscribers, but not their actual identities,
they served subpoenas on Charter and other ISPs to obtain the infringing subscribers’ names and
contact information. Although Charter’s customer agreements allowed it to produce that
information, and no real doubt existed as to their customers’ underlying infringement, Charter
vigorously opposed the subpoenas, undermining the record companies’ efforts to curb direct
infringement activity.
Answer:

Defendant admits that they received and responded to subpoenas seeking

information regarding certain of its subscribers. Defendant denies the remaining allegations in
Paragraph 93 of the First Amended Complaint.
94.

As a result, the record companies were forced to pursue the slower and more

expensive process of filing “John Doe” lawsuits to ascertain the infringers’ identities. In those
litigations, Charter was required to provide identifying information about infringing subscribers.
As Charter is aware, many of those cases resulted in judgments confirming its subscribers’ liability
for copyright infringement through Charter’s Internet service, including infringement of works
owned or exclusively controlled by Plaintiffs.
Answer:

Defendant denies the allegations in Paragraph 94 of the First Amended

Complaint.
95.

Thereafter, the Record Company Plaintiffs began sending notices to Charter (and

other ISPs) identifying additional specific instances of its subscribers’ infringement through P2P

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activities. From 2012 through 2015, Charter received hundreds of thousands of notices, provided
under penalty of perjury, detailing specific instances of its subscribers using P2P protocols on its
network to distribute and copy Plaintiffs’ copyrighted content unlawfully both within, and beyond,
the Charter network.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in the first sentence of Paragraph 95 of the First Amended Complaint, and on that basis
denies those allegations. Defendant admits that it received notices from third party, the RIAA, of
which the only portion stated under penalty of perjury is that the RIAA was authorized to send the
notice on behalf of its member companies in matters involving the infringement of their sound
recordings, including enforcing their copyrights and common law rights on the Internet. Defendant
denies the remaining allegations in Paragraph 95.
96.

The infringement notices provided to Charter identify the unique IP address

assigned to each user of Charter’s network, and the date and time the infringing activity was
detected. Only Charter, as the provider of the technology and system used to infringe, had the
information required to match the IP address to a particular subscriber, and to contact that
subscriber or terminate that subscriber’s service.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in the first sentence in Paragraph 96 of the First Amended Complaint, and on that basis
denies those allegations. Defendant admits that Charter generally has the ability to match an IP
address, accompanied with the date and time, to particular subscribers, with respect to at least some
historic accounts, but denies that Charter has the ability to determine the identity of the individual
using the device on its service. Defendant denies the remaining allegations in Paragraph 96 of the
Complaint.

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97.

Plaintiffs’ infringement notices notified Charter of clear and unambiguous

infringing activity by Charter subscribers—that is, unauthorized downloading and distribution of
copyrighted music. Charter’s subscribers had no legal basis or justification for downloading or
distributing digital copies of Plaintiffs’ sound recordings and musical compositions to thousands
or millions of strangers over the Internet. Tellingly, to the extent that Charter forwarded Plaintiffs’
infringement notices to subscribers accused of using Charter’s network to infringe, those
subscribers did not challenge the claims of infringement by sending counter-notices to Charter
contesting those claims (a process that Charter outlined and made available to its users).
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in the second sentence in Paragraph 97 of the Complaint, on that basis denies those
allegations. Defendant admits that Charter generally has the ability to match an IP address,
accompanied with the date and time, to particular subscribers, with respect to at least some historic
accounts, but denies that Charter has the ability to determine the identity of the individual using
the device on its service. Defendant denies the remaining allegations in Paragraph 97 of the First
Amended Complaint.
98.

Apart from attesting to the sheer volume of the infringing activity on its network,

the infringement notices sent to Charter pointed to specific subscribers who were flagrant and
serial infringers. The infringement notices identified tens of thousands of Charter subscribers
engaged in blatant and repeated infringement of Plaintiffs’ copyrighted works. To cite just a few
specific examples:
•

During a 623-day period, Charter’s subscriber with IP address 66.189.102.119 was
identified in 220 infringement notices, which were sent on at least 184 separate
days.

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•

During a 395-day period, Charter’s subscriber with IP address 71.85.202.236 was
identified in 206 infringement notices, which were sent on at least 138 separate
days.

•

During a 547-day period, Charter’s subscriber with IP address 68.187.189.36 was
identified in 197 infringement notices, which were sent on at least 157 separate
days.

•

During a 363-day period, Charter’s subscriber with IP address 75.130.165.208 was
identified in 189 infringement notices, which were sent on at least 123 separate
days.

•

During a 393-day period, Charter’s subscriber with IP address 24.159.16.82 was
identified in 174 infringement notices, which were sent on at least 134 separate
days.

•

During a 304-day period, Charter’s subscriber with IP address 98.127.105.135 was
identified in 54 infringement notices, which were sent on at least 53 separate days.

These examples and countless others amply illustrate that, rather than terminating repeat
infringers—and losing subscription revenues—Charter simply looked the other way.
Answer:

Defendant denies the allegations in Paragraph 98 of the First Amended

Complaint.
99.

During all pertinent times, Charter had the full legal right, obligation, and technical

ability to prevent or limit the infringements occurring on its network. Under Charter’s “Terms of
Service/Policies,” which its subscribers agreed to as a condition of using its Internet service,
Charter was empowered to exercise its right and ability to suspend or terminate a customer’s
Internet access. Charter could do so for a variety of reasons, including a subscriber’s copyright
infringement activity. Charter’s Copyright Policy expressly provided that “[i]f Charter receives
more than one Notice of Copyright Infringement on the customer’s part, the customer may be
deemed a ‘repeat copyright infringer . . . [and Charter] reserves the right to terminate the accounts
of ‘repeat copyright infringers.’” (Emphasis added.)

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Answer:

Defendant admits that it maintains a Terms of Service and Acceptable Use

Policy, and those documents speak for themselves. Charter denies the remaining allegations in
Paragraph 99 of the First Amended Complaint.
100.

Despite these alleged policies, and despite receiving hundreds of thousands of

infringement notices from Plaintiffs, as well as thousands of similar notices from other copyright
owners, Charter knowingly permitted specifically identified repeat infringers to continue to use its
network to infringe. Rather than disconnect the Internet access of blatant repeat infringers to curtail
their infringement, Charter knowingly continued to provide these subscribers with the Internet
access that enabled them to continue to illegally download or distribute Plaintiffs’ copyrighted
works unabated. Charter’s provision of high-speed Internet service to known infringers materially
contributed to these direct infringements.
Answer:

Defendant denies the allegations in Paragraph 100 of the First Amended

Complaint.
101.

Charter’s motivation for refusing to terminate or suspend the accounts of blatant

infringing subscribers is simple: it valued corporate profits over its legal responsibilities. Charter
did not want to lose subscriber revenue by terminating accounts of infringing subscribers.
Retaining infringing subscribers provided a direct financial benefit to Charter. Nor did Charter
want to risk the possibility that account terminations would make its service less attractive to other
existing or prospective users. Moreover, Charter was simply disinterested in devoting sufficient
resources to tracking repeat infringers, responding to infringement notices, and terminating
accounts in appropriate circumstances. Considering only its own pecuniary gain, Charter ignored
and turned a blind eye to flagrant, repeat violations by known specific subscribers using its service
to infringe, thus facilitating and multiplying the harm to Plaintiffs. And Charter’s failure to police

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its infringing subscribers adequately was a draw to subscribers to purchase Charter’s services, so
that the subscribers could then use those services to infringe Plaintiffs’ (and others’) copyrights.
The specific infringing subscribers identified in Plaintiffs’ notices, including the egregious
infringers identified herein, knew Charter would not terminate their accounts despite receiving
multiple notices identifying them as infringers, and they remained Charter subscribers to continue
illegally downloading copyrighted works.
Answer:

Defendant denies the allegations in Paragraph 101 of the First Amended

Complaint.
102.

The consequences of Charter’s support of and profit from infringement are obvious

and stark. When Charter’s subscribers use Charter’s network to obtain infringing copies of
Plaintiffs’ copyrighted works illegally, that activity undercuts the legitimate music market,
depriving Plaintiffs and those recording artists and songwriters whose works they sell and license
of the compensation to which they are entitled. Without such compensation, Plaintiffs, and their
recording artists and songwriters, have fewer resources available to invest in the further creation
and distribution of high-quality music.
Answer:

Defendant denies the allegations in Paragraph 102 of the First Amended

Complaint and denies that Plaintiffs are entitled to any relief.
CLAIMS FOR RELIEF
Count I – Contributory Copyright Infringement
103.

Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1

through 102 as if fully set forth herein.
Answer:

Defendant incorporates by reference its responses to Paragraphs 1 through

102 of the Complaint.

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104.

Charter and its subscribers do not have any authorization, permission, license, or

consent to exploit the copyrighted sound recordings or musical compositions at issue.
Answer:

Defendant lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 104 of the Complaint and on that basis denies those allegations.
105.

Charter’s subscribers, using Internet access and services provided by Charter, have

unlawfully reproduced and distributed via BitTorrent, or other P2P networks, thousands of sound
recordings and musical compositions for which Plaintiffs are the legal or beneficial copyright
owners or exclusive licensees. The copyrighted works infringed by Charter’s subscribers, which
have been registered with the U.S. Copyright Office, include those listed on Exhibits A and B, and
many others. The foregoing activity constitutes direct infringement in violation of 17 U.S.C. §§
106 and 501, et seq.
Answer:

Paragraph 95 contains legal conclusions to which no response is required.

Defendant admits that Exhibits A and B to the First Amended Complaint purport to list the works
alleged by Plaintiffs in this action. Defendant lacks knowledge or information sufficient to admit
or deny the remaining allegations in Paragraph 105 of the Complaint and on that basis denies those
allegations.
106.

Charter is liable as a contributory copyright infringer for the direct infringements

described above. Through Plaintiffs’ infringement notices and other means, Charter had
knowledge that its network was being used for infringement of Plaintiffs’ copyrighted works on a
massive scale, and also knew of specific subscribers engaged in such repeated and flagrant
infringement. Nevertheless, Charter facilitated, encouraged, and materially contributed to such
infringement by continuing to provide its network and the facilities necessary for its subscribers

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to commit repeated infringements. Charter had the means to withhold that assistance upon learning
of specific infringing activity by specific users but failed to do so.
Answer:

Paragraph 106 contains legal conclusions to which no response is required.

To the extent a response is required, Defendant denies the allegations contained in Paragraph 106
of the First Amended Complaint.
107.

By purposefully ignoring and turning a blind eye to its subscribers’ flagrant and

repeated infringements, Charter knowingly caused and materially contributed to the unlawful
reproduction and distribution of Plaintiffs’ copyrighted works, including but not limited to those
listed on Exhibits A and B hereto, in violation of Plaintiffs’ exclusive rights under the copyright
laws of the United States.
Answer:

Paragraph 107 contains legal conclusions to which no response is required.

Defendant admits that Exhibits A and B to the First Amended Complaint purport to list the works
alleged by Plaintiffs in this action. To the extent a response is required, Defendant denies the
allegations contained in Paragraph 107 of the First Amended Complaint.
108.

Each infringement of Plaintiffs’ copyrighted sound recordings and musical

compositions constitutes a separate and distinct act of infringement. Plaintiffs’ claims of
infringement against Charter are timely pursuant to tolling agreements.
Answer:

Paragraph 108 contains legal conclusions to which no response is required.

To the extent a response is required, Defendant denies the allegations contained in Paragraph 108
of the First Amended Complaint.
109.

The foregoing acts of infringement by Charter have been willful, intentional, and

purposeful, in blatant disregard of Plaintiffs’ rights. Indeed, the sound recordings on Exhibit A and

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the musical compositions on Exhibit B represent works infringed by Charter’s subscribers after
those particular subscribers were identified to Charter in multiple infringement notices.
Answer:

Paragraph 109 contains legal conclusions to which no response is required.

To the extent a response is required, Defendant denies the allegations contained in Paragraph 109
of the First Amended Complaint.
110.

As a direct and proximate result of Charter’s willful infringement of Plaintiffs’

copyrights, Plaintiffs are entitled to statutory damages pursuant to 17 U.S.C. § 504(c), in an amount
of up to $150,000 with respect to each work infringed, or such other amount as may be proper
under 17 U.S.C. § 504(c). Alternatively, at Plaintiffs’ election, Plaintiffs shall be entitled to their
actual damages pursuant to 17 U.S.C. § 504(b), including Charter’s profits from the infringements,
as will be proven at trial.
Answer:

Paragraph 110 contains legal conclusions to which no response is required.

To the extent a response is required, Defendant denies the allegations contained in Paragraph 110
of the First Amended Complaint.
111.

Plaintiffs also are entitled to their attorneys’ fees and full costs pursuant to 17

U.S.C. § 505.
Answer:

Paragraph 111 contains legal conclusions to which no response is required.

To the extent a response is required, Defendant denies the allegations contained in Paragraph 111
of the First Amended Complaint.
Count II – Vicarious Copyright Infringement
112.

Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1

through 111 as if fully set forth herein.

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Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
113.

Charter and its subscribers have no authorization, license, or other consent to

exploit the copyrighted sound recordings or musical compositions at issue.
Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
114.

Charter’s subscribers, using Internet access and services provided by Charter, have

unlawfully reproduced and distributed via BitTorrent or other P2P services thousands of sound
recordings and musical compositions of which Plaintiffs are the legal or beneficial copyright
owners or exclusive licensees. The copyrighted works infringed by Charter’s subscribers, which
have been registered with the U.S. Copyright Office, include those listed on Exhibits A and B, and
many others. The foregoing activity constitutes direct infringement in violation of 17 U.S.C. §§
106 and 501, et seq.
Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
115.

Charter is liable as a vicarious copyright infringer for the direct infringements

described above. Charter has the legal and practical right and ability to supervise and control the
infringing activities that occur through the use of its network, and at all relevant times has had a
financial interest in, and derived direct financial benefit from, the infringing use of its network.
Charter has derived an obvious and direct financial benefit from its customers’ infringement. The

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ability to use Charter’s high-speed Internet facilities to illegally download Plaintiffs’ copyrighted
works has served to draw, maintain, and generate higher fees from paying subscribers to Charter’s
service. Among other financial benefits, by failing to terminate the accounts of specific repeat
infringers known to Charter, Charter has profited from illicit revenue through user subscription
fees that it would not have otherwise received from repeat infringers, as well as new subscribers
drawn to Charter’s services for the purpose of illegally downloading copyrighted works. The
specific infringing subscribers identified in Plaintiffs’ notices, including the egregious infringers
identified herein, knew Charter would not terminate their accounts despite receiving multiple
notices identifying them as infringers, and they remained Charter subscribers to continue illegally
downloading copyrighted works.
Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
116.

Charter is vicariously liable for the unlawful reproduction and distribution of

Plaintiffs’ copyrighted works, including but not limited to those listed on Exhibits A and B hereto,
in violation of Plaintiffs’ exclusive rights under the copyright laws of the United States.
Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
117.

Each infringement of Plaintiffs’ copyrighted sound recordings and musical

compositions constitutes a separate and distinct act of infringement. Plaintiffs’ claims of
infringement against Charter are timely pursuant to tolling agreements.

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Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
118.

The foregoing acts of infringement by Charter have been willful, intentional, and

purposeful, in blatant disregard of Plaintiffs’ rights. Indeed, the sound recordings on Exhibit A and
the musical compositions on Exhibit B are works infringed by Charter’s subscribers after those
particular subscribers were identified to Charter in multiple prior infringement notices.
Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
119.

As a direct and proximate result of Charter’s willful infringement of Plaintiffs’

copyrights, Plaintiffs are entitled to statutory damages, pursuant to 17 U.S.C. § 504(c), in an
amount of up to $150,000 with respect to each work infringed, or such other amount as may be
proper under 17 U.S.C. § 504(c). Alternatively, at Plaintiffs’ election, pursuant to 17 U.S.C. §
504(b), Plaintiffs shall be entitled to their actual damages, including Charter’s profits from the
infringements, as will be proven at trial.
Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
120.

Plaintiffs are further entitled to their attorneys’ fees and full costs pursuant to 17

U.S.C. § 505.

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Answer:

Pursuant to the Federal Rules of Civil Procedure and the Court’s Order,

dated March 4, 2020 (Dkt. No. 141), Charter is not yet required to respond to this allegation and
reserves its rights accordingly.
PRAYER FOR RELIEF
Plaintiffs’ Prayer for Relief contains legal conclusions to which no response is required. To
the extent a response is required, Defendant denies any allegations associated with Plaintiffs’
Prayer for Relief and denies that Plaintiffs are entitled to any relief.
JURY TRIAL DEMAND
Defendant demands a trial by jury of all issues that are so triable.
AFFIRMATIVE DEFENSES TO COUNT I
Defendant identifies the following affirmative defenses to Count I and reserves the right to
raise additional defenses as discovery proceeds. Defendant also reserves the right to assert
affirmative defenses to Count II, if and when Charter is required to answer Count II. Defendant
does not assume the burden of proof on any issue, however characterized, on which it does not
bear that burden. Defendant reserves all affirmative defenses not stated herein under Rule 8(c) of
the Federal Rules of Civil Procedure and any other defense at law or in equity that may now exist
or in the future be available based upon discovery and further investigation in this case.
1.

The Complaint, and each cause of action within it, fails to state facts sufficient to
constitute a cause of action.

2.

The statute of limitations bars Plaintiffs’ claims to the extent Plaintiffs allege
infringements that accrued outside the three-year limitations period, including any
applicable tolling of the limitations period.

3.

Plaintiffs’ claims are barred by their failure to join indispensable parties.

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4.

Plaintiffs’ claims are barred or its damages are limited because any infringement
was innocent and was not willful.

5.

Plaintiffs’ claims based upon secondary liability are barred because Plaintiffs
cannot establish primary liability.

6.

Plaintiffs’ claims based on contributory liability are barred because Defendant did
not have the requisite knowledge of the alleged primary infringement and did not
cause, encourage, or induce the alleged primary infringement.

7.

Plaintiffs’ claims based on contributory liability are barred because Defendant did
not materially contribute to the alleged primary infringement.

8.

Plaintiffs’ claims are barred because Defendant’s ISP service has substantial noninfringing uses.

9.

Plaintiffs’ claims are barred by the doctrine of copyright misuse.

10.

Plaintiffs’ failure to mitigate damages bars their claims or limits their recovery.

11.

The doctrine of unclean hands bars Plaintiffs’ claims.

12.

The doctrines of waiver and estoppel bar Plaintiffs’ claims.

13.

Plaintiffs’ claims are barred to the extent they do not own copyrights in the works
underlying their claims.

14.

The Court lacks subject matter jurisdiction over claims that depend upon works for
which Plaintiffs have not obtained copyright registrations.

15.

To the extent that Plaintiffs or their predecessors did not register copyrights before
alleged infringements or within three months of first publication of published
works, the failure to register timely bars Plaintiffs’ claims for statutory damages
and attorneys’ fees.

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16.

To the extent that Plaintiffs rely upon copyright registrations that rest upon
misstatements or fraud, those misstatements or fraud bar Plaintiffs’ claims.

17.

To the extent that Plaintiffs failed to comply with renewal, notice, and registration
requirements and/or other formalities, Plaintiffs’ claim are barred.

18.

Plaintiffs’ claims are barred because the statutory damages sought are
unconstitutionally excessive and disproportionate to any actual damages that may
be sustained, in violation of the Due Process clause of the U.S. Constitution.

19.

Application of the Copyright Act and its remedies to the conduct of Defendant and
their customers as Plaintiffs request would violate due process.

20.

Plaintiffs’ claims are barred by the First Amendment to the United States
Constitution.

21.

To the extent that Plaintiffs can establish any underlying direct or secondary
infringement, Defendant’s liability and Plaintiffs’ remedies are limited because
Defendant qualifies for “safe harbor” under the Digital Millennium Copyright Act
(“DMCA”) 17 U.S.C. § 512(a).
COUNTERCLAIMS

Defendant Charter Communications, Inc. (“Charter” or “Defendant”), by and through its
counsel, hereby asserts counterclaims to Count I of Plaintiffs’ Complaint against Plaintiffs as
follows:
I.

Introduction
1.

Charter is an Internet service provider (“ISP”) that provides its customers access to

the Internet. As part of its ISP services, Charter does not store its subscribers’ content on its servers.
Charter does not host websites that index infringing files. Charter does not create or distribute
peer-to-peer file-sharing software or other file-sharing software. Nevertheless, Plaintiffs seek to
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impose secondary liability on Charter for alleged copyright infringement by its subscribers, in an
effort to create a substantial new set of liabilities and burdens for ISPs.
2.

This Court has original subject matter jurisdiction over Charter’s counterclaims

pursuant to 28 U.S.C. §§ 1331 and 1338(a).
II.

Factual Allegations
A.

Charter’s Business

3.

Charter is one of the largest communications companies in the country, offering a

variety of services, including cable, telephone, and Internet access services.
4.

Charter provides Internet service to both residential subscribers and businesses. Its

high-speed Internet service provides some twenty-nine million U.S. customers with Internet
connections across 41 states.
5.

As an ISP, Charter provides its customers with a gateway to the Internet, which has

become virtually indispensable to functioning in the modern world.
6.

The Internet provides access to a host of services, some of them critical. Individuals

rely on Internet access to obtain services in the areas of healthcare, employment, education,
banking, commerce, social interaction, news and entertainment, and many others.
7.

As the Supreme Court recently emphasized in the case of Packingham v. North

Carolina, for many people the Internet provides “the principal sources for knowing current events,
checking ads for employment, speaking and listening in the modern public square, and otherwise
exploring the vast realms of human thought and knowledge.” 137 S. Ct. 1730, 1737 (2017).
8.

A subscriber loosing Internet access can have devastating consequences.

9.

As an ISP, Charter provides connections and enables connected computers to

access the Internet.

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10.

Charter provides Internet access service to its residential subscribers for a flat

monthly fee.
11.

Charter cannot remove third-party material from the Internet unless that material is

stored on Charter’s own servers. Charter cannot control what its customers store on their own or
others’ computers.
12.

Charter has no ability to remove or take down infringing content from its

customers’ computers. Charter cannot restrict, or even detect, the specific content that its
customers access or share.
13.

Charter cannot supervise the online activities of its customers. Nor can Charter

control its customers’ conduct online. While Charter could disable its customers’ ability to access
its ISP system, or terminate customers’ accounts, that does not give Charter control over its
customers’ conduct online. For example, a Charter subscriber could access the Internet through
other accounts or public networks.
14.

Charter also cannot determine whether one of its subscribers is using the network,

as opposed to someone else using the subscriber’s account, with or without the subscriber’s
permission to do so.
15.

Charter does not control the Internet.

16.

The privacy of its customers is of paramount concern to Charter. Internet users

frequently transmit private and sensitive information, and trust their ISP to safeguard their privacy
and security.
17.

Charter does not spy on its customers or monitor their Internet traffic. Even if it

could do so—and it cannot—it would not. Engaging in surveillance in such a fashion would
violate Charter’s policies, ethics, and corporate culture.

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18.

Operating an ISP service—and safeguarding customers and other Internet users—

entails responding to a number of potential abuses such as security threats, invasion of privacy,
identity theft, denial of service attacks, botnets or other malware (such as viruses, spyware, and
worms), spam, fraud, phishing scams, copyright infringement, and a host of others.
19.

Charter’s Subscriber Security Services Team manages issues like these that

threaten Charter’s network or customers, as well as other abuses of Charter’s system. This team is
tasked with protecting Charter’s customer facing networks and services by assessing and
responding to security threats and attacks, and coordinating threat mitigation activities with the
appropriate organizations and external agencies to ensure a safe and secure communications
infrastructure.
20.

Among other things, the Subscriber Security Services Team assists law

enforcement and cooperates with other ISPs to combat security and privacy threats, addresses
internal security issues, assists customers, and processes copyright infringement notices that
Charter receives from copyright owners and their agents.
B.

Charter’s Receipt of Copyright Infringement Notices

21.

When Charter receives a copyright infringement notice alleging copyright

infringement from a third party, it reviews the notice to ensure that it complies with Charter’s
policies. Among other things, Charter requires the sender of a copyright infringement notice to
identify the copyrighted work claimed to have been infringed and to identify the material that is
claimed to be infringing. Copyright infringement notices must also comply with Charter’s other
policies, including Charter’s privacy policy.

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22.

Charter reserves the right to terminate subscribers and account holders who

repeatedly infringe copyrights, and Charter’s policy is to terminate repeat infringers when Charter
deems it appropriate to do so. Charter informs its subscribers and account holders of this policy.
23.

Charter cannot verify infringement notices that it receives. In particular, Charter

cannot verify whether the information in a notice is accurate.
24.

Charter cannot itself detect infringement, and cannot determine whether infringing

content is crossing its network. Charter cannot control or examine material that is on its
subscribers’ computers. Even if it could, doing so would violate Charter’s policies and violate its
users’ privacy.
25.

Copyright infringement notices that Charter receives for its ISP service always refer

to acts of alleged infringement that occurred in the past. Charter cannot examine the content a
customer allegedly made available in the past, detect what the customer did with that content, or
know whether a subscriber was authorized to possess, reproduce or distribute that content.
26.

Charter cannot confirm whether the sender of a notice actually owns the copyright

for an allegedly infringed work, nor whether the sender is authorized to send notices on behalf of
the true owner. Charter cannot determine the true owner of the copyright for an allegedly infringed
work.
27.

Charter cannot control alleged infringement on the Internet. Charter cannot

supervise or control what its customers store on their computers, and cannot look at, locate, or
remove any content that its customers may be uploading, downloading, or accessing through its
ISP service.
28.

With respect to business customers, terminating an account would sever access to

multiple potentially innocent end users. This is particularly the case with business customers that

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may be regional or local ISPs, through which hundreds, thousands, or even tens or hundreds of
thousands of potentially innocent end users’ internet access could be severed due to the alleged
acts of a single end user.
C.

Charter’s Abuse Tracking System

29.

In this case, Plaintiffs seek relief for claims of infringement that accrued from

March 24, 2013 through May 17, 2016 (the “Claim Period”). 3
30.

During the Claim Period, Charter received different types of notifications

concerning its ISP system. This included security notices, notices about system issues, copyright
infringement notices, and others.
31.

Prior to and throughout the Claim Period, Charter utilized a system called

“CATS”—Charter Abuse Tracking System—to partially automate the handling of abuse
notifications that Charter receives. Among other things, Charter’s Subscriber Security Services
Team used CATS as a tool for processing and addressing copyright infringement notices. This
allowed Charter to process, respond to, and to address such notices more efficiently.
32.

Automation is important because manual processing of incoming abuse complaints

is infeasible for all but the smallest ISP networks in light of the automated techniques used by
spammers that generate a high volume of abuse complaints. Automation also decreases the risk
that complaints from copyright owners could get lost in the flood of other abuse complaints.
33.

CATS converted copyright infringement notices that meet Charter’s basic

requirements into “tickets.” CATS also stored a copy of the copyright notices received (if any) per
subscriber.
The Universal Plaintiffs seek relief for claims that accrued on or after March 24,
2013; the Sony Music Plaintiffs and Warner Plaintiffs seek relief for claims that accrued on or
after April 18, 2013; and the Sony/ATV and EMI Plaintiffs seek relief for claims that accrued on
or after June 15, 2013.
3

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34.

Accepting and processing notices is both time consuming and costly, requiring

multiple systems and numerous personnel to work in coordination. Charter incurs costs in
connection with undertaking these actions, as well.
35.

During the Claim Period, Charter processed notices received from Plaintiffs, in

accordance with its policies and CATS and forwarded those notices to accused subscribers
reminding them that infringing copyright violates Charter’s Acceptable Use Policy and
emphasizing that they should take immediate action to stop the exchange of any infringing
material.
D.

The Copyright Alert System (CAS)

36.

In July 2011, all of the major record companies and movie studios, along with their

industry representatives, the RIAA and the Motion Picture Association of America (“MPAA”),
and five of the largest ISPs in the United States collectively entered into the Copyright Alert
System Memorandum of Understanding (“CAS MOU” to establish a “Copyright Alert System”
(the “CAS”).
37.

Under the CAS, signatory content owners or their representatives, which included

the RIAA and MPAA, could send notices of alleged copyright infringement (“ISP Notices”) to
ISPs. The ISPs would accept and process the ISP Notices.
38.

If an ISP received an ISP Notice that could be associated with the account of a

particular ISP subscriber, then the ISP would send a notification—called a Copyright Alert—to
the subscriber.
39.

Under the CAS MOU, participating ISPs were required to accept and process only

a limited volume of ISP Notices. The CAS MOU also provided that a participating ISP could

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temporarily cease processing ISP Notices if it received more than its business processes and
systems could reasonably address.
40.

After an ISP had forwarded 6 Copyright Alerts to a single subscriber, the ISP was

not required to forward any subsequent Copyright Alerts, regardless of the fact that the subscriber
might be the subject of multiple, subsequent infringement notices.
41.

Further, an ISP was not required to forward more than one Copyright Alert to a

single subscriber within a seven-day grace period, to give an affected subscriber time to review
each Copyright Alert pertaining to such subscriber’s account and to take appropriate steps to avoid
receipt of further Copyright Alerts.
42.

The participating ISPs were required to track the number of notices their

subscribers received so that the information could be provided to the content owners (or their
representatives), so that the content owners could institute infringement actions directly against
the subscribers—not the ISPs.
43.

The CAS did not require ISPs to terminate subscribers who were repeatedly

accused of infringement.
44.

At least some of Plaintiffs are, and during the Claim Period were, well aware of the

provisions of the CAS MOU.
45.

On information and belief, all of the Warner Plaintiffs are, or during the Relevant

Time Period were, affiliates, subsidiaries, or successors of signatories to the CAS MOU.
46.

On information and belief, all of the Sony Music Plaintiffs are, or during the

Relevant Time Period were, affiliates, subsidiaries, or successors of signatories to the CAS MOU.

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47.

On information and belief, all of the Sony/ATV and EMI Plaintiffs are, or during

the Relevant Time Period were, affiliates, subsidiaries, or successors of signatories to the CAS
MOU.
48.

On information and belief, all of the Universal Plaintiffs are, or during the Relevant

Time Period were, affiliates, subsidiaries, or successors of signatories to the CAS MOU.
49.

The RIAA was a signatory to the CAS MOU.

50.

On information and belief, all of the Record Company Plaintiffs were members of

the RIAA during the Relevant Time Period or were affiliates, subsidiaries, or partners of RIAA
members. 4
51.

Charter was also aware of the CAS MOU during the Relevant Time Period;

however, Charter was not a signatory to the CAS MOU.
52.

On information and belief, one goal of the CAS MOU was to establish industry

standard practices for entertainment industry copyright owners to submit copyright infringement
notices to ISPs, and for ISPs to process such notices and inform their subscribers of infringement
allegations against them.
53.

Content owners participating in the CAS MOU (including some of Plaintiffs here)

and participating ISPs (including SBC Internet Services, Verizon Online, Comcast Cable
Communications Management, CSC Holdings, and Time Warner Cable) established the Center
for Copyright Information (the “CCI”).
54.

An express goal of the CCI was “facilitating the involvement of non-participating

ISPs in … the Copyright Alert program.”
4

The “Record Company Plaintiffs” are comprised of Plaintiffs WRI, Atlantic, Bad Boy, Elektra,
FBR, Lava, Maverick, Nonesuch, The All Blacks, Warner Music, Warner Records/SIRE, WEA,
Sony, Arista Music, Arista Records, LaFace, Provident, Sony Latin, Century, Volcano, Zomba,
UMG, and Capitol Records, as defined in Paragraph 37 of Plaintiffs’ First Amended Complaint.
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55.

In May 2014, RIAA Chairman and CEO Cary Sherman described the Center for

Copyright Information as “a model for success.” 5 Mr. Sherman lauded “the Alert program and all
its accomplishments.” He stated that the CAS was “moving the needle,” and acknowledged that as
the CAS program progressed, “there were fewer and fewer Alerts sent at each level.
56.

Further, upon information and belief, early reports note that merely sending notices

had a meaningful impact on reducing infringement, as evidenced by the fact that fewer subscribers
continued to receive subsequent alerts. Further, the CCI believed that the program would be
effective against the vast majority of subscribers engaged in on-line infringement and that “very
few subscribers, after repeated alerts, will persist (or allow others to persist) in the content theft.”
57.

Importantly, the CAS MOU required that the ISPs provide data to the content

owners and/or their representatives, so that the participants can assess the effectiveness of the
program.
E.

Plaintiffs Withdrawal of Works for Which They Sent Copyright Infringement
Notices to Charter

58.

On information and belief, the Record Company Plaintiffs, through their agent the

RIAA, engaged the services of rights enforcement company MarkMonitor to monitor and detect
infringing activity and send notices alleging copyright infringement to Charter. MarkMonitor
markets itself as an “antipiracy solution.”
59.

On March 22, 2019, Plaintiffs sued Charter for contributory infringement and

vicarious liability, alleging that Charter’s subscribers had infringed at least 11,482 sound
recordings and music compositions (the “works in suit”). The works in suit are listed on Exhibits
A and B to Plaintiffs’ original complaint.
5

Cary Sherman, “CCI: A Model for Success,” RIAA.com (May 28, 2014) (available online at
https://www.riaa.com/cci-a-model-for-success/).
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60.

In connection with these allegations, Plaintiffs claimed that they “own and/or

control in whole or in part the copyrights and/or exclusive rights” in the works in suit.
61.

In connection with these allegations, Plaintiffs claimed that between March 24,

2013 and May 17, 2016, their “representatives … sent hundreds of thousands of statutory
infringement notices to Charter, under penalty of perjury,” claiming that Charter’s subscribers
infringed the works in suit. The Music Publisher Plaintiffs 6 did not send any notices, however, as
the notices were sent only on behalf of the Record Company Plaintiffs’ representative, the RIAA.
62.

On January 15, 2020, Plaintiffs amended the list of works in suit, removing over

450 works from this case (the “Dropped Works”).
63.

The Record Company Plaintiffs dropped 272 sound recordings and the Music

Publisher Plaintiffs dropped 183 music compositions.
64.

Upon information and belief, Plaintiffs dropped at least some of these works

because they do not “own and/or control in whole or in part the copyrights and/or exclusive rights”
the works.
65.

Indeed, Plaintiffs dropped these works after they were ordered to produce further

documentation relating to their purported ownership or ability to assert the works in suit in this
case.
66.

Despite later dropping these works the Record Company Plaintiffs, or their agent

acting on their behalf, nevertheless sent notices to Charter in connection with the Dropped Works,
6

The “Music Publisher Plaintiffs” is comprised of Plaintiffs Warner Chappell, WarnerTamerlane, WC Music, W.C.M., Unichappell, Rightsong Music, Cotillion, Intersong, Chappell,
Sony/ATV, EMI Al Gallico, EMI Algee, EMI April, EMI Blackwood, EMI Colgems, EMI Full
Keel, EMI Longitude, EMI Entertainment, EMI Jemaxal, EMI Feist, EMI Miller, EMI Mills,
EMI Unart, EMI U, Famous Music, Jobete, Stone Agate, Gems-EMI, Stone, UMC, MGB,
Universal Music Publishing, AB, Publishing Limited, MGB Limited, Z Tunes, Island, MCA
Limited, MCA Publishing Limited, Music Corp., Musik Edition, Polygram Publishing, and
Songs of Universal, as defined in Paragraph 80 of Plaintiffs’ First Amended Complaint.
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claiming that they “have identified a user … reproducing or distributing an unauthorized copy of
a copyrighted sound recording” and that the recipient of the notice “may be liable for infringing
activity occurring” on Charter’s network. The Record Company Plaintiffs further claimed in their
notices that the user’s “Internet account was used to illegally copy and/or distribute copyrighted
music over the Internet” and that the notice contained “the details of the illegal file-sharing,
including the time, date, and a sampling of the music shared.” The Record Company Plaintiffs’
notices “assert that the information in the notice is accurate” and that they “have a good faith belief
that this activity is not authorized by the copyright owner, its agent, or the law.” The notices
further stated that “[u]nder penalty of perjury,” “the RIAA is authorized to act on behalf of its
member companies in manners involving the infringement of their sound recordings, including
enforcing their copyrights and common law rights on the Internet.”
67.

While the Music Publisher Plaintiffs did not send any notices for the music

compositions in suit to Charter, the Music Publisher Plaintiffs’ infringement claims in this case
purportedly rely on notices sent by the Record Company Plaintiffs to Charter, including those for
the Dropped Works.
68.

Upon information and belief, at least in connection with the Dropped Works, the

Record Company Plaintiffs sent notices to Charter with inaccurate information, including but not
limited to the misrepresentation that the RIAA was authorized on behalf of Plaintiffs to send a
notice relating to these allegedly infringed works, that the Record Company Plaintiff on whose
behalf the notice was sent owned or controlled the work, and that the actions alleged to have been
taken by Charter’s subscribers constituted infringement of the Record Company Plaintiffs’ rights.
69.

Upon information and belief, the Record Company Plaintiffs did not own the

Dropped Works when they sent notices for them.

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70.

Upon information and belief, the Record Company Plaintiffs did not have the right

to send notices to Charter for the Dropped Works.
71.

After Plaintiffs identified the works in suit, including the Dropped Works, Charter

investigated Plaintiffs’ purported ownership or control of the Dropped Works or whether the
Record Company Plaintiffs otherwise had the right to send notices to Charter for them.
72.

Many of the same record companies and music publishers that are in this case

pursued damages in Sony Music Entertainment et al. v. Cox Communications, Inc. et al, Case No.
1:18-cv-950 (LO/JFA) (E.D. Va.) (“Sony”) for certain of the Dropped Works, and the jury returned
a verdict for certain of the Dropped Works in an amount of nearly $100,000 per work. In this case,
Plaintiffs’ counsel could not confirm to the Court either that each of the Sony record companies
and music publishers owned or controlled each of the works at issue in that case or was the correct
legal entity to obtain an award of statutory for each of those works.
73.

Upon information and belief, Plaintiffs devote substantial resources to protecting

and exploiting the copyrights they claim to own or control.
74.

Upon information and belief, at all times, Plaintiffs had or should have had

knowledge of the status of their purported ownership or control of copyrights when they sent
infringement notices regarding those copyrights, including those at issue in this case.
F.

The Unreliability of Plaintiffs’ Copyright Infringement Notices

75.

Notices of alleged copyright infringement, such as those Plaintiffs’ agents

submitted to Charter, can be unreliable.
76.

Academic studies have demonstrated that copyright infringement notices sent by

third parties to online service providers can be unreliable and are prone to error.

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77.

For example, a 2016 study examined a sample of 288,675 copyright infringement

notices that were sent to online service providers between May 1, 2013 and October 31, 2013 (the
“Study Period”). Jennifer Urban, et al., Notice and Takedown in Everyday Practice (2016)
(“Urban Study”). 7
78.

The Urban Study found that 4.2% of the infringement claims examined “were

fundamentally flawed because they targeted content that clearly did not match the identified
infringed work.” Id. at 88. In addition, 28.4% of notices that the Urban Study examined “had
characteristics that raised clear questions about their validity,” including notices with “multiple
potential issues.” Id.
79.

Because some notices in the sample set for the Urban Study contained multiple

requests, these notices together represented over 100 million claims of infringement. Id
80.

The RIAA sent notices that were included in the sample that the Urban Study

analyzed.
81.

MarkMonitor sent notices that were included in the sample that the Urban Study

analyzed.
82.

The Urban Study also discussed specific instances in which notices sent by

MarkMonitor were “clear mismatches” between the allegedly infringed work, and the online
content that was allegedly infringing. Id. at 92.
83.

The Urban Study also identified MarkMonitor as having sent tens of thousands of

notices during the Study Period alleging infringement by file-sharing websites that had been “dead
more than 18 months.” Id. at 89-90.

7

Available online at
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2938642_code1788303.pdf?abstractid=2755
628&mirid=1 (last visited March 11, 2020).
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84.

Multiple news stories, including stories from the time period covered by Plaintiffs’

copyright infringement allegations, reported errors in notices sent by MarkMonitor to online
service providers. For example, in February and March of 2013, multiple news stories highlighted
instances in which MarkMonitor (under the name Dtecnet, a division of MarkMonitor) had sent
erroneous copyright infringement notices to online service providers.
85.

A February 3, 2013 news story reported that Dtecnet, a division of MarkMonitor,

had sent copyright infringement notices to Google, alleging that HBO’s own website contained
infringing copies of HBO’s copyrighted content. See Ernesto Van der Sar, “HBO Wants Google
to censor HBO.com,” TorrentFreak (February 3, 2013). 8
86.

A March 1, 2013 news story reported that Dtecnet, a division of MarkMonitor, had

misidentified a modified version of an online game as a television show, resulting in issuance of
multiple incorrect copyright infringement notices. See Masnick, Mike, “System Used By New Six
Strikes CAS, Falsely Identifies Game Mods As NBC TV Shows,” TechDirt.com (Mar. 1, 2013). 9
87.

MarkMonitor was also the rights enforcement organization that the CCI employed

to detect instances of alleged infringement and send ISP Notices in connection with the CAS.
88.

In 2012, the CCI hired the firm Stroz Friedberg to perform an assessment of

MarkMonitor’s technology in connection with the CAS.
89.

Stroz Friedberg had been retained by the RIAA as a lobbying firm from 2004

through 2009.

8

Available online at https://torrentfreak.com/hbo-wants-google-to-censor-hbo-com-130203/ (last
visited March 11, 2020).
9
Available online at https://www.techdirt.com/articles/20130224/22341022086/system-usednew-six-strikes-cas-falsely-identifies-game-mods-as-nbc-tv-shows.shtml (last visited March 11,
2020).
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90.

The Stroz Friedberg assessment contained six recommendations that “focused on

improving the accuracy and reliability” of MarkMonitor’s processes.
91.

Among the six recommendations, Stroz Friedberg advised that MarkMonitor

should augment the file identification trail. Specifically, Stroz Friedberg stated that the current
manual verification process employed by MarkMonitor to review the first instance of an infringed
file is key to all subsequent steps in its process. Thus, if a file were to be improperly verified as
infringing as a result of improper or incomplete review, it would generate a ripple effect through
the entire AntiPiracy workflow, resulting in the collection and generation of notices for nonprotected works.

MarkMonitor advised that the potential exposure of risk at this juncture

warranted supplemental mitigating measures.
92.

Stroz Friedberg further explained that MarkMonitor generates notices for allegedly

infringing files before it has verified those files as authentic. MarkMonitor stated that this process
results in the collection of thousands of files that are later determined to be not infringing.
MarkMonitor also stated that this process increases the chances that notices will be generated for
non-infringing files.
93.

After it was reported that Stroz Friedberg has been a lobbyist for the RIAA between

2004 and 2009, the CCI hired a second consulting firm, Harbor Labs, to conduct another review
of MarkMonitor’s system.
94.

Harbor Labs did not analyze MarkMonitor’s system directly but relied on test

results conducted previously by Stroz Friedberg as part of its assessment in 2012.
95.

On December 5, 2012, Harbor Labs released its evaluation, in which it stated that

MarkMonitor should undergo consistent and regular end-to-end testing, improve its verification
approaches, and improve its controls over employee access to sensitive data.

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96.

Specifically, Harbor Labs noted that MarkMonitor does not maintain any precision-

relevant metrics on its live system. In other words, except for in the event a recipient of a notice
complains that the notice is inaccurate, MarkMonitor does not maintain any data confirming its
notices are accurate.
97.

On information and belief, Plaintiffs have not directly sued providers of P2P

software; and/or companies or individuals who host, index, or link to infringing copies of the works
in suit.
98.

On information and belief, Plaintiffs have not sued any individual direct infringers

for the infringements they allege here.
99.

Charter brings Claim I for declaratory relief based upon explicit threats and actual

litigation by Plaintiffs against Charter. An actual case or controversy exists within the meaning of
28 U.S.C. § 2201 as to whether Charter bears liability pursuant to the claims threatened by
Plaintiffs in and out of court. A judicial determination is necessary and appropriate at this time so
that the parties may ascertain their respective rights and obligations, if any.
CLAIM ONE
FOR A DECLARATORY JUDGMENT THAT CHARTER IS NOT LIABLE FOR
CONTRIBUTORY INFRINGEMENT OF PLAINTIFFS’ WORKS AT ISSUE
100.

Charter repeats the allegations in Paragraphs 1 through 99 and incorporates them

101.

Charter provides high-speed Internet service that enables its subscribers to access

here.

the Internet and the myriad of services that Internet access enables and provides. Charter itself
does not store its subscriber’s content on its servers in connection with its ISP service, does not
host websites that index infringing files, does not and did not promote the ability to infringe on its

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network, and does not create or distribute peer-to-peer file-sharing software or other file-sharing
software.
102.

Charter’s ISP system is capable of substantial non-infringing uses.

103.

Charter cannot itself detect infringement occurring on its system or the Internet.

104.

Charter lacked the ability to verify Plaintiffs’ allegations of infringement.

105.

The systems Plaintiffs used to detect infringement and send copyright infringement

notices were unreliable and were known to be unreliable.
106.

Charter lacked knowledge of any acts of copyright infringement by others

particularly claimed by Plaintiffs in this action.
107.

Charter lacked knowledge of any acts of copyright infringement by others generally

claimed by Plaintiffs in this action.
108.

Charter has not materially contributed to any third party’s violation of Plaintiffs’

exclusive right to reproduce works in copies under 17 U.S.C. § 106(1).
109.

Charter has not materially contributed to any third party’s violation of Plaintiffs’

exclusive right to prepare derivative works based upon Plaintiffs’ copyrighted works under 17
U.S.C. § 106(2).
110.

Charter has not materially contributed to any third party’s violation of Plaintiffs’

exclusive right to distribute copies of Plaintiffs’ copyrighted works to the public by sale or other
transfer of ownership, or by rental, lease, or lending under 17 U.S.C. § 106(3).
111.

Charter has not materially contributed to any third party’s violation of Plaintiffs’

exclusive right to perform Plaintiffs’ copyrighted works publicly in copies under 17 U.S.C.
§ 106(4).

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112.

Charter has not materially contributed to any third party’s violation of Plaintiffs’

exclusive right to display Plaintiffs’ copyrighted works publicly works in copies under 17 U.S.C.
§ 106(5).
113.

Charter has not materially contributed to any third party’s violation of Plaintiffs’

exclusive right to perform Plaintiffs’ copyrighted sound recordings publicly by means of a digital
audio transmission under 17 U.S.C. § 106(6).
114.

Charter is entitled to a declaration that it is not liable to Plaintiffs, or any of them,

on account of copyright infringement by others.
CLAIM TWO
VIOLATION OF DMCA SECTION 512(f) FOR KNOWINGLY SENDING
MATERIALLY INACCURATE NOTICES OF ALLEGED INFRINGEMENT
Charter repeats the allegations in Paragraphs 1 through 114 and incorporates them here.
115.

Upon information and belief, during the Claim Period, the Record Company

Plaintiffs sent notices to Charter that contained inaccurate information, including but not limited
to the misrepresentation that the RIAA was authorized on behalf of the Record Company Plaintiffs
to send a notice relating to these allegedly infringed works, that the Record Company Plaintiff on
whose behalf the notice was sent owned or controlled the work, and that the actions alleged to
have been taken by Charter’s subscribers constituted infringement of the Record Company
Plaintiff’s rights.
116.

Upon information and belief, the Record Company Plaintiffs knew or should have

known, that the notices contained inaccurate information before they were sent. For example, the
Record Company Plaintiffs knew, or should have known, that they did not own or control certain
of the works identified in notices sent to Charter before they were sent.

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117.

Upon information and belief, the Record Company Plaintiffs became aware of the

fact that they did not own or control certain works or, alternatively, they did not have the
permission to send infringement notices relating to certain works. Upon information and belief,
Plaintiffs nevertheless sent, or authorized the sending of, notices to Charter, despite this
knowledge.
118.

During the Claim Period, Charter received notices from the Record Company

Plaintiffs that it could not verify. Specifically, Charter could not verify whether any of the
Plaintiffs owned or controlled the work identified in the notice. Charter also could not verify
whether the sender of the notice was authorized to send it. Charter also could not verify whether
the activity that was alleged in the notice constitute copyright infringement.
119.

During the Claim Period, Charter relied on the Record Company Plaintiffs’

statement that “the information in the notice is accurate” and that Plaintiffs “have a good faith
belief that this activity is not authorized by the copyright owner, its agent, or the law.”
120.

In reliance on these representations, Charter accepted the notices and processed

them accordingly. This includes, but is not limited to, accepting each notice into its CATS,
processing it, forwarding it to the referenced subscriber, and taking any further necessary action.
121.

Charter incurs costs in implementing its CATS, including when processing

Plaintiffs’ inaccurate notices.
122.

Charter is injured when it processes inaccurate notices, causing it to forward false

accusations to its subscribers, to the extent this creates tension with the impacted subscribers,
negatively affects goodwill, and causes reputational harm to Charter.
123.

Charter was also injured through its investigation of the veracity of the notices for

the Dropped Works, including whether Plaintiffs owned or controlled the works when the Record

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Company Plaintiffs sent notices for them, including to the extent they relate to the Music Publisher
Plaintiffs’ Dropped Works, or whether the Record Company Plaintiffs had the right to send notices
to Charter for the Dropped Works.
124.

Charter was also injured through its defense of the allegations concerning fallacious

notices, including determining whether Plaintiffs’ own or control the works when the Record
Company Plaintiffs sent the notices or whether the Record Company Plaintiffs had the right to
send notices to Charter for the Dropped Works, including to the extent they relate to the Music
Publisher Plaintiffs’ Dropped Works
DEMAND FOR JURY TRIAL
Defendant hereby requests a trial by jury on all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Defendant Charter Communications, Inc. respectfully requests that this
Court enter judgment as follows:
a.

Judgment against Plaintiffs and in favor of Defendant on Plaintiffs’ claims set forth

in the First Amended Complaint and dismissal of such claims with prejudice;
b.

A declaratory judgment, holding that Defendant is not liable for contributory

infringement of Plaintiffs’ works at issue;
c.

For damages, in an amount up to the maximum provided by law, arising from

Plaintiffs’ violation of 17 U.S.C. 512(f);
d.

Ordering Plaintiffs to pay Defendant’s reasonable attorneys’ fees and costs incurred

in connection with this action pursuant to 17 U.S.C. § 505 and/or § 512(f); and
e.

Such other and further relief in Defendant’s favor as the Court shall deem just and

proper.

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Dated: March 18, 2020

Michael S. Elkin (pro hac vice)
Thomas Patrick Lane (pro hac vice)
Seth E. Spitzer (pro hac vice)
WINSTON & STRAWN LLP
200 Park Avenue
New York, NY 10166
(212) 294-6700 (telephone)
(212) 294-4700 (facsimile)
E-mail: melkin@winston.com
E-mail: tlane@winston.com
E-mail: sspitzer@winston.com
Erin R. Ranahan (pro hac vice)
Shilpa A. Coorg (pro hac vice)
WINSTON & STRAWN LLP
333 S. Grand Avenue
Los Angeles, CA 90071
(213) 615-1933 (telephone)
(213) 615-1750 (facsimile)
E-mail: eranahan@winston.com
E-mail: scoorg@winston.com

Respectfully submitted,
s/ Jennifer A. Golinveaux
Jennifer A. Golinveaux (pro hac vice)
WINSTON & STRAWN LLP
101 California Street, 35th Floor
San Francisco, CA 94111-5840
(415) 591-1506 (telephone)
(415) 591-1400 (facsimile)
E-mail: jgolinveaux@winston.com
Craig D. Joyce
John M. Tanner
Fairfield and Woods, P.C.
1801 California Street, Suite 2600
Denver, Colorado 80202
(303) 830-2400 (telephone)
(303) 830-1033 (facsimile)
E-mail: cjoyce@fwlaw.com
Counsel for Defendant
Charter Communications, Inc.

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CERTIFICATE OF SERVICE
I certify that on March 18, 2020, I caused a true and correct copy of the foregoing
document to be electronically filed with the Clerk of the Court via CM/ECF, which will send a
notice of electronic filing to all counsel of record.

Matthew J. Oppenheim
Scott A. Zebrak
Jeffrey M. Gould
OPPENHEIM + ZEBRAK, LLP
4530 Wisconsin Ave. NW, 5th Floor
Washington, DC 20016
Tel: (202) 851-4526
E-mail: matt@oandzlaw.com
E-mail: scott@oandzlaw.com
E-mail: jeff@oandzlaw.com
E-mail: kerry@oandzlaw.com
Attorneys for Plaintiffs

Mitchell A. Kamin
Neema T. Sahni
Mark Y. Chen
COVINGTON & BURLING LLP
1999 Avenue of the Stars, Suite 3500
Los Angeles, CA 90067-4643
Tel: (424) 332-4800
E-mail: mkamin@cov.com
E-mail: nsahni@cov.com
E-mail: mychen@cov.com
Attorneys for Plaintiffs

Janette L. Ferguson
LEWIS BESS WILLIAMS & WEESE, P.C.
1801 California Street, Suite 3400
Denver, CO 80202
Tel: (303) 861-2828
E-mail: jferguson@lewisbess.com
E-mail: bleoni@lewisbess.com
Attorneys for Plaintiffs

Jonathan M. Sperling
William E. O’Neil
COVINGTON & BURLING LLP
620 Eighth Avenue
New York, NY 10018-1405
Tel: (212) 841-1000
E-mail: jsperling@cov.com
E-mail: woneil@cov.com
Attorneys for Plaintiffs
Megan M. O’Neill
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001-4956
Tel: (202) 662-5416
E-mail: moneill@cov.com
Attorneys for Plaintiffs

s/ Jennifer A. Golinveaux
Jennifer A. Golinveaux

69