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US court rejects latest attempt by Cox Communications to overturn billion dollar judgement in labels case

By | Published on Tuesday 29 March 2022

Cox Communications

The court that oversaw the record industry’s big legal battle with US internet service provider Cox Communications – which resulted in the net firm being ordered to pay the major record companies $1 billion in damages – has ruled that developments in a similar case involving another ISP are not grounds for revisiting that billion dollar judgement.

Cox had cited developments in the music industry’s litigation against Charter Communications in one of various attempts to get the ruling in its dispute with the record companies overturned.

The major labels originally sued Cox in 2018 – in the wake of another lawsuit successfully pursued by BMG – arguing that the ISP had a deliberately shoddy system for dealing with repeat infringers among its customer base. That meant the net firm could not rely on the copyright safe harbour to avoid liability for the copyright infringement occurring on its networks. The jury considering the case agreed – hence the billion dollar damages.

Cox has been trying to get that judgement overturned ever since. In part by arguing that the labels never actually proved that Cox customers infringed their copyrights. Because if you can’t prove any Cox customers directly infringed music controlled by the record companies, you can’t hold Cox liable for any contributory copyright infringement.

That particular argument has focused on the operations of the anti-piracy agency employed by the labels, which is MarkMonitor. And this particular attempt to get the billion dollar judgement overturned relates to a hard drive of unlicensed music gathered from the Cox networks by MarkMonitor which was used as evidence when the case was in court.

That hard disk contained metadata suggesting those music files had actually been downloaded in 2016. Which would be a problem, because the specific infringement the music companies sued over took place between 2012 and 2014.

When that came up during the original case, 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.

Cox wanted to investigate that explanation further, and requested “source code and revision history information” from MarkMonitor to assess the reliability and credibility of the evidence it had provided. However, at the time MarkMonitor said that there was no source code and revision history information to share.

But then, last year, in the related legal battle between the music industry and Charter Communications, MarkMonitor revealed that it had, in fact, now found some relevant source code and revision history. And that, Cox reckoned, changed everything.

“The recently disclosed MarkMonitor source code and revision history data constitute ‘newly discovered evidence’ which may give rise to relief”, Cox told the court in January. So much so, it said, the court should either “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”.

Responding, the labels argued that, for tedious technical reasons, the dates on the hard disk of infringing files were irrelevant, meaning the new data recently unearthed by MarkMonitor had no bearing on the case.

“The dates of file downloads simply do not matter in the context of this case because, as fully explained to the jury, files with matching hash values are identical regardless of when downloaded”, the labels said in a filing with the court last month.

“This was a foundation of MarkMonitor’s detection system. And it was on this basis that the jury appropriately found direct infringement by Cox subscribers, whom MarkMonitor detected sharing files with hash values that matched hash values of confirmed infringing files”.

“Cox received the agreement describing what MarkMonitor did, knew the hard drive files had 2016 metadata, and even challenged the evidence before and during trial, on the same failed basis advanced again here”, the labels went on.

“Thus, Cox had every opportunity to explore these issues and conduct robust cross-examination in depositions and at trial in fully and fairly presenting its defence”.

And judge Liam O’Grady basically agrees with the labels on all of this. Technically speaking the specific dates on the hard drive aren’t relevant, plus Cox could have more rigorously pursued this line of argument during the actual court case, rather than after the fact. And the new data from the Charter case doesn’t change any of that.

In a new judgement, O’Grady states: “The Charter code relates to how MarkMonitor stored data from Audible Magic’s identification of the contents of suspected infringing files. MarkMonitor utilised Audible Magic so that MarkMonitor could develop a database of known infringing files, identified by their unique hash value”.

“Thereafter, MarkMonitor would identify ISP subscribers engaging in infringement by observing them distributing a known infringing file, identified by its unique hash vale. That these files may have been downloaded and verified in 2016 – after the claims period – is of no consequence”.

“Indeed, the dates of the file downloads do not matter in the context of this case because, as fully explained at trial, files with matching hash values are identical regardless of when downloaded”.

Plus, “Cox previously had every opportunity to explore these issues and ample evidence by which to put on a defence. The court finds that the Charter code is not material here”.

Expanding on that decision, he adds: “Given the ongoing litigation in the similar case … defendants may well be rethinking and reevaluating their previous trial strategies. Even still, the court does not doubt that defendants received a full and fair trial here”.

“The jury had ample and relevant evidence by which to render their verdict”, he concludes. “The court finds that there is no need to ‘relieve a party … from a final judgement’ because the newly discovered evidences is not material, nor is it likely to produce a new outcome if the case were retried”.

So, Cox Communications can shut up with its moaning. Well, in this court. The ISP’s appeal in the Fourth Circuit appeals court continues.