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Labels object to Charter Communications hiring former EMI lawyer

By | Published on Monday 24 February 2020

Charter Communications

The major labels in the US have objected to one of the legal experts hired by internet service provider Charter Communications in relation to ongoing litigation regarding the latter’s alleged liability for the copyright infringement of its users. The majors say that, because said expert spent six years earlier in her career as an in-house lawyer for EMI, she should not be granted ‘qualified person’ status in this case.

Charter is one of various American ISPs being sued over the copyright infringement of its users. Citing the precedent set in two lawsuits against Cox Communications, the labels argue that companies like Charter should not enjoy safe harbour protection from such liability, because they had shoddy systems for dealing with infringement and infringers on their networks.

Given that Cox was told to pay the record industry a billion dollars in damages when it lost its second case on this point late last year, the other ISPs, like Charter, are fighting their respective lawsuits hard. To help with its defence, Charter has hired the services of Dina Hellerstein as a consultant. Among other things, she spent six years in-house at EMI between 1998 and 2004. The American labels of EMI are now owned by Universal, of course, which is one of the plaintiffs in this case.

Charter wants Hellerstein to be classified as a ‘qualified person’ in relation to the litigation, which would allow it to share confidential information about the dispute with the lawyer. However, doing so, the labels argue, creates a “risk of serious harm” to their case.

The labels wrote in a legal filing last week: “Ms Hellerstein was a senior legal executive for EMI Music, which encompassed plaintiff Capitol Records, and has since been acquired by Universal Music Group, the umbrella company for several of the plaintiffs in this case”.

“In this role”, they went on, “Ms Hellerstein acquired six years of confidential and privileged information regarding EMI’s ownership and control of the works in its catalogue – now part of the UMG/Capitol repertoire – and regarding the record industry’s anti-piracy enforcement and litigation strategies, both of which go to central issues in this case”.

“Defendant’s engagement of Ms Hellerstein in a case that could implicate confidential and privileged information that she learned in her capacity as counsel raises an obvious ‘risk of serious harm’ to plaintiffs”, they added, before demanding that the court intervene.

“Because Charter has failed to respond to plaintiffs’ request for greater clarity as to the scope of its engagement of Ms Hellerstein in a manner that could allay such concerns”, they wrote, “plaintiffs are forced to ‘move the court for an order denying the expert or consultant status as a qualified person’ under the protective order”.

It remains to be seen how the court now responds. Meanwhile, the Charter case continues to go through the motions, alongside similar lawsuits against the likes of Grande Communications and RCN. Plus, of course, Cox is appealing that billion dollar ruling against it.