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Cox Communications says labels were wrong about supposedly missing evidence in billion dollar copyright case

By | Published on Friday 14 January 2022

Cox Communications

The major record companies are liars! Big fat liars! Outrageous unapologetic immoral lying motherfuckers! In fact, come to think of it, so prolific and brazen are their lies, they’d fit right in as members of Boris Johnson’s government. Yes, we’re talking that scale of lies! I should stress, these are not my opinions. This is according to US internet service provider Cox Communications.

Well, sort of. I am paraphrasing slightly. OK, quite a bit. But Cox does reckon that – not only did the record companies “conceal and misrepresent” the “provenance” of key evidence in their billion dollar copyright case against the net firm – but their anti-piracy agency MarkMonitor also incorrectly stated that certain important files and data linked to that evidence didn’t exist. Because, it turns out, said evidence very much does exist.

Cox, of course, was found liable for the copyright infringement of its customers after being sued by the music industry – initially BMG, and then later the majors. The music firms successfully argued that Cox only paid lip service to its own repeat infringer policy. And enforcing that policy is a requirement for internet companies that want safe harbour protection from liability for any infringement that occurs on their networks. As a result, Cox had no safe harbour, and therefore it did have liability, and then a billion dollar damages bill.

The ISP has been trying to overturn that ruling ever since, most recently in the Fourth Circuit appeals court. Most of its recent arguments have been based on the notion that the record companies didn’t properly prove in court that its customers illegally downloaded their music and therefore infringed their copyrights. Because if your can’t prove the customers directly infringed any copyrights, you can’t hold the ISP liable for contributory copyright infringement.

Key to that is the evidence gathered by MarkMonitor. Similar evidence is key to another lawsuit being pursued by the music industry against an ISP – in that case Charter Communications. And Cox argues that revelations in that case raise issues with the evidence that the anti-piracy firm presented during its legal battle with the majors.

During the original trial, Cox said that metadata on a hard drive of unlicensed music supposedly downloaded between 2012 and 2014 suggested that the files had in fact been downloaded in 2016. That was important because the labels’ lawsuit focused on music shared and takedown notices issued between 2012 and 2014.

MarkMonitor insisted that the 2016 metadata was there because the files had been copied from the disk on which they were originally stored – between 2012 and 2014 – to a new hard disk in 2016. However, Cox said last year, developments in the Charter case meant there was now reason to believe that the files on that all important hard disk had, in fact, been originally downloaded in 2016.

In its latest legal filing, Cox now notes that during its original legal battle with the majors it also sought from the anti-piracy outfit some extra files and data linked to the evidence – specifically “source code and revision history information”. That was important, they argued at the time, for assessing the reliability and credibility of said evidence.

“The purported accuracy of MarkMonitor’s system was a critical issue throughout discovery, in summary judgment proceedings, and at trial, which is why Cox had served targeted discovery on MarkMonitor regarding its systems, including its source code”, the latest legal filing from Cox says.

However, back then, “MarkMonitor’s counsel ultimately represented that ‘there is no revision history … as MarkMonitor was only running one version during the relevant time period’; ‘the source code represents the source code for the version of MarkMonitor’s system during the relevant time period’; and ‘the source code is in its original executable form without revision or modification’”.

But yet more developments in the Charter case dispute that conclusion. Because, it says, in November last year “plaintiffs’ counsel disclosed in [the Charter case] that MarkMonitor purported to have discovered certain source code and revision history data that MarkMonitor previously represented to Cox (and Charter) did not exist and it did not produce in this case”.

Now, of course, that doesn’t necessarily mean that MarkMonitor actively hid the existence of that source code and revision history data during the Cox case, because it might have been lost then, before being found last year. However, Cox reckons, those files and that data could have been key in its legal battle with the majors.

“The recently disclosed MarkMonitor source code and revision history data constitute ‘newly discovered evidence’ which may give rise to relief”, the ISP argues, by which it means, it might be grounds for overturning the billion dollar ruling.

Though, it admits, formally pursuing that argument will require “the production of the source code, revision history information, and any further necessary discovery to fully demonstrate that the missing evidence was ‘of such a material and controlling nature as [would] probably [have] changed the outcome’”. To that end, it wants MarkMonitor to share that code and info.

Plus, with all that in mind, “Cox respectfully requests that this court enter an indicative ruling … stating that it is inclined to grant Cox’s motion for relief from the judgment, or – at a minimum – that Cox’s motion raises a substantial issue that warrants further consideration by this court”.

We await a response from the liars – sorry, that was hyperbole wasn’t it – from the super honest – if, for a time, wrong about the existence of some key files – good folk at the record companies and MarkMonitor.