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US ISP hits out at music firms for equating BitTorrent with piracy

By | Published on Tuesday 17 November 2015

Cox Communications

Rebellious US internet service provider Cox Communications, which isn’t part of the anti-piracy Copyright Alert System project, has filed a motion in its ongoing litigation with BMG and Round Hill Music in which it asks that its music industry opponents not be allowed to equate BitTorrent usage with piracy.

As previously reported, BMG and Round Hill accuse Cox of not fulfilling its obligations to combat piracy committed by its customers on its networks. The case will test the ISP’s obligations under US law to help rights owners restrict the unlicensed distribution of copyright material on its networks, ie how much work must Cox do to enjoy protection under the much discussed safe harbours, which mean tech companies cannot be held liable for copyright infringement that third parties commit via their technologies?

As the case goes through the motions, Torrentfreak notes a recent filing by Cox which objects to the music firms using the level of BitTorrent traffic on the ISP’s networks as evidence of the scale of piracy committed by the net company’s customers.

While a portion of BitTorrent traffic will, almost certainly, relate to piracy, the file-sharing technology has legitimate uses. The music companies, therefore, says Cox, should not be allowed to present an argument along the lines of: most BitTorrent traffic is piracy, look at all the BitTorrent traffic, that’s a lot of piracy, Cox should have seen this and acted. Which may or may not be an argument that BMG and Round Hill are planning to present.

In its recent submission, Cox says: “Plaintiffs seek to introduce testimony and third-party hearsay – with inflammatory statements such as ‘file-sharing is really about piracy’ – as proof that BitTorrent use equates to the existence of infringement. Once they have argued that BitTorrent use is automatically infringing, plaintiffs seek to introduce other testimony and documents showing that some proportion of data traffic on Cox’s network is associated with BitTorrent in order to mislead the jury into thinking that Cox knew or should have known about the infringement that plaintiffs allege”.

The music companies, Cox says, should be obliged to show the actual unlicensed distribution of works they control on its networks, which would conveniently make the music firms’ case harder to pursue. And to that end, “the court should preclude plaintiffs from relying on mere innuendo that BitTorrent inherently allows individuals to infringe plaintiffs’ copyrights”.

It remains to be seen how the judge responds as both sides prepare to present their respective arguments in court.