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By Chris Cooke | Posted on Tuesday, March 29, 2022
The court that oversaw the record industry’s major legal battle with US internet service provider Cox Communications – which resulted in the internet company being ordered to pay major record labels $1 billion in damages – ruled that developments in a similar case involving another ISP are not grounds to reverse the billion-dollar judgment.
Cox had cited developments in the music industry’s litigation against Charter Communications in one of various attempts to overturn the ruling in its dispute with the record companies.
Major labels initially sued Cox in 2018 – following another successful lawsuit brought by BMG – arguing that the ISP had a deliberately shoddy system for dealing with repeat offenders among its customer base. This meant that the Internet company could not rely on the copyright safe harbor to avoid liability for copyright infringement occurring on its networks. The jury hearing the case agreed – hence the billions of dollars in damages.
Since then, Cox has been trying to have that judgment overturned. Partly by arguing that the labels never proved that Cox’s customers infringed their copyrights. Because if you can’t prove that Cox’s customers directly infringed the music controlled by the record labels, you can’t hold Cox liable for any contributory copyright infringement.
This particular argument focused on the operations of the anti-piracy agency employed by labels, which is MarkMonitor. And this particular attempt to get the billion-dollar judgment overturned involves an unlicensed music hard drive collected from Cox Networks by MarkMonitor that was used as evidence when the case went to court.
This hard drive contained metadata suggesting that these music files were in fact downloaded in 2016. Which would be a problem, as the specific infringement the music companies are suing for took place between 2012 and 2014.
When this happened in the original case, MarkMonitor insisted that the 2016 metadata was there because the files had been copied from the disk they were originally stored on – between 2012 and 2014 – to a new one. hard drive in 2016.
Cox wanted to dig deeper into this explanation and requested “source code and revision history information” from MarkMonitor to assess the reliability and credibility of the evidence he provided. However, at the time, MarkMonitor said 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 relevant source code and revision history. And that, Cox felt, changed everything.
“The recently leaked MarkMonitor source code and revision history data constitute ‘newly discovered evidence’ that may be remediable,” Cox told the court in January. So much so, he said, that the court should either “make an indicative decision … stating that it is inclined to grant Cox’s motion for relief from judgment, or – at a minimum – that Cox’s motion Cox raises a substantial issue that deserves further consideration by this court.”
In response, the labels argued that, for cumbersome technical reasons, the dates on the hard drive of the infringing files were irrelevant, meaning that the new data recently discovered by MarkMonitor had no bearing on the case.
“The dates of file downloads simply don’t matter in the context of this case because, as explained in detail to the jury, files with matching hash values are identical regardless of when they were downloaded,” the labels said in a court filing last month.
“That was the basis of MarkMonitor’s detection system. And it was on this basis that the jury correctly found a direct violation by Cox subscribers, whom MarkMonitor detected sharing files with hash values that matched the hash values of the confirmed infringing files” .
“Cox received the agreement outlining what MarkMonitor did, knew the hard drive files contained metadata from 2016, and even challenged the evidence before and during the trial, on the same basis of failure argued again here “, continued the labels.
“Thus, Cox had every opportunity to explore these issues and conduct robust cross-examination in deposition and at trial by presenting his defense fully and fairly.”
And Judge Liam O’Grady basically agrees with the labels on all of this. Technically speaking, the precise dates on the hard drive are irrelevant, and Cox could have pursued this argument more rigorously during the trial, rather than after the fact. And the new data from the Charter case does not change that.
In a new ruling, O’Grady said, “The Charter code relates to how MarkMonitor stored data from Audible Magic’s identification of the contents of files suspected of being infringing. MarkMonitor used Audible Magic so that MarkMonitor could develop a database of known infringing files, identified by their unique hash value.”
“Subsequently, MarkMonitor would identify infringing ISP subscribers by observing them distributing a known infringing file, identified by its unique hash value. Whether these files could have been downloaded and verified in 2016 – after the claim period – has no consequence”.
“Indeed, the dates of the file downloads are irrelevant in the context of this case because, as explained in detail at trial, files with matching hash values are identical regardless of when they were downloaded” .
Moreover, “Cox previously had every opportunity to explore these issues and plenty of evidence to defend himself. The court concludes that the Charter code is not relevant here”.
Expanding on that decision, he adds: “Given the ongoing litigation in a similar case…defendants may well rethink and re-evaluate their previous trial strategies. Even still, the court has no doubt that the defendants received a full and fair trial here.”
“The jury had sufficient and relevant evidence to reach its verdict,” he concludes. “The court finds it unnecessary to ‘relieve any part … from final judgment’ because the newly discovered evidence is not material and is not likely to produce a new result if the case were retried” .
So Cox Communications can shut up with its moans. Well, in this court. The ISP’s appeal to the Fourth Circuit Court of Appeals continues.