The major labels have hit back at the latest attempt by US internet service provider Cox Communications to overturn the 2019 billion dollar judgement that held it liable for its users’ copyright infringement.
This time Cox is trying to use Rule 60 of the US Federal Rules Of Civil Procedure to overturn the copyright ruling. That rule says a court can “relieve a party from a final judgement” in various scenarios, including if it turns out the other side misbehaved during trial.
Cox claims the majors mishandled key evidence in the case. That claim was previously rejected by the district court, but the ISP has taken the matter to the Fourth Circuit Appeals Court.
In a new filing with the appeals court, the majors say, “Cox lost this case, in a fairly litigated trial where it had every opportunity to defend itself. Cox - and its appellate counsel - clearly regret some of its trial team’s decisions. But Rule 60 does not provide a pathway to re-try a case with the benefit of hindsight”.
In the original case, the majors successfully argued that Cox did not do enough to combat known repeat infringers among its customer base and should therefore be held liable for their infringement. Initially to the tune of one billion dollars, although the Fourth Circuit previously forced the district court to reconsider the damages.
In order to hold the ISP liable for infringement, the labels had to show that the internet company’s customers had directly infringed the copyright in their recordings. They did that with a hard disk of data gathered by anti-piracy company MarkMonitor, which related to music files that had been downloaded illegally between 2012 and 2014.
Cox argues that issues with that data emerged after the trial, when the major labels subsequently sued other ISPs with the same arguments.
In particular, it emerged that the actual music files in the dataset had been downloaded in 2016, two years after the alleged infringements had occurred. Those data issues are grounds for overturning the Cox judgment on the basis of Rule 60, according to Cox. The majors do not agree.
They say that, because of the way MarkMonitor’s piracy tracking works, the fact the music files were downloaded later than 2014 is irrelevant. And, perhaps more importantly, Cox already knew - or should have known - that the music files were downloaded in 2016.
“Cox now claims that it was kept in the dark about the fact that the hard drive’s files were downloaded in 2016”, their legal filing states. However, “The record shows otherwise”.
“Twenty months before trial”, it goes on, “Cox received from MarkMonitor the 2016 statement of work between the Recording Industry Association Of America and MarkMonitor. Cox’s counsel stated under oath, in a discovery motion filed before trial, that he knew the hard drive files may have been downloaded in 2016”.
“Cox’s failure to examine the evidence in its possession - whether out of strategy or sloppiness - does not establish any misconduct” on the part of the record companies.
There is a second element to Cox’s Rule 60 claim, which relates to a separate set of data which was not available during the trial. The labels explain in their filing that this is a “portion of code” that “concerns the communication between two different systems - one from MarkMonitor and one from Audible Magic, an audio recognition service”.
Neither the labels nor Cox had access to that code during the trial, the new filing explains, it only coming to light during the later ISP cases. Cox wants the court to authorise a new round of discovery in relation to its dispute with the majors so it can “dig into this belatedly discovered portion of MarkMonitor’s source code”, the majors’ filing says.
However, it goes on, “even if post-trial discovery were permissible, Cox failed to prove that it was warranted here. Cox had more than enough evidence to mount its defence; a portion of additional source code would have made no difference”.
As a result, say the labels, the appeals court should uphold the ruling of the lower court and reject Cox’s attempt to overturn the 2019 ruling on Rule 60 grounds.