Business News Digital Labels & Publishers Legal

Cox says labels’ key evidence should be excluded in copyright legal battle

By | Published on Wednesday 21 August 2019

Cox Communications

American internet service provider Cox Communications and the US record industry continue to spar as their copyright legal battle goes through the motions. Now the net firm is picking holes in the data that the labels want to present as key evidence in their case.

The major record companies, of course, are trying to hold Cox liable of its users’ copyright infringement. Internet firms usually claim safe harbour protection from such liability, arguing that they operate the takedown systems required by law to enjoy such protection. However, the music industry argues that various American ISPs – including Cox – had deliberately shoddy systems for dealing with repeat infringers, and therefore shouldn’t qualify for safe harbour. Which would mean they could be held liable for their users’ infringing activity.

BMG’s legal victory against Cox on this issue has led to various other lawsuits being filed by the American record industry at large, including against Cox itself. There was meant to be a pre-trial conference for the labels and Cox earlier this month, to see if an out-of-court settlement could be reached. But the ISP bailed on that at the last minute, resulting in the labels accusing the net firm of “a consistent pattern of obstruction, delay and gamesmanship”.

For its next move in the game, Cox has now submitting a new legal filing calling on the judge to block the labels from presenting some of its key evidence when the case gets to court later this year. The evidence is data gathered by anti-piracy firm MarkMonitor which shows Cox customers accessing and sharing copyright protected music without licence.

To hold the ISP liable for contributory infringement in relation to its users’ conduct, the labels first need to show that said users directly infringed their copyrights. Hence this data.

But Cox says that MarkMonitor, which collaborated with audio-ID firm Audible Magic to produce the evidence, has not kept all of the data related to the work. And, as a result, the ISP argues, the evidence is not sufficiently credible to be used in court.

In the words of Cox’s new legal filing: “MarkMonitor failed to retain critical portions of this evidence, and the document that plaintiffs intend to rely on is, at best, a partial and inaccurate summary of these analyses. Because plaintiffs’ agent destroyed the underlying data, leaving no way to assess the accuracy of this summary, Cox respectfully requests that the court enter discovery sanctions against plaintiffs in the form of a preclusion order prohibiting plaintiffs from relying on the incomplete and unreliable MarkMonitor evidence”.

So that’s fun. We can probably expect plenty more sparring as the full court hearing on this dispute approaches.

Although, in theory, the BMG v Cox case set a precedent regarding the limitations of safe harbour protection where ISPs don’t properly enforce their own anti-piracy policies, these follow-on cases are crucial.

Because there were some technicalities in the BMG case that actually saw the original ruling in the music firm’s favour over-turned. And, while it would almost certainly have won again second time round, an out-of-court settlement was reached before that could happen.