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The \u201crepeat infringer\u201d issue remains a hot topic in US courts and over the years several ISPs have been sued because of them.<\/p>\nThe \u201crepeat infringer\u201d issue remains a hot topic in US courts and over the years several ISPs have been sued because of them.<\/p>\n
These Internet providers stand accused of not doing enough to stop copyright infringers on their networks, even after receiving multiple \u2018copyright infringement\u2019 notifications from rightsholders.<\/p>\n
The most prominent outcome thus far is the guilty verdict against Cox<\/a> from late 2019. Following a jury trial, the company was ordered to pay a billion dollars in damages to a group of major record labels.<\/p>\n Following the verdict, several of the labels shifted their focus to the next targets<\/a>, including ISP Grande Communications, which is now owned by Astound. A trial was initially scheduled to start in early 2020 but due to time constraints and the pandemic, it was postponed multiple times.<\/p>\n A few days ago, the jury trial finally began at a federal court in the Western District of Texas. In anticipation, both parties submitted motions to exclude several topics, with partial success. But with the trial now underway, disagreement remains an issue. <\/p>\n During the opening statements, Grande gave the jury a brief overview of its defense. This included a mention of a witness who had heard from several subscribers targeted by piracy accusations who said they had done nothing wrong.<\/p>\n \u201cAnd you\u2019re going to learn that customers would call in confused about the accusations against them. You\u2019re going to hear from one of our witnesses who talked to one of those people directly, and he\u2019s going to say they swear they did nothing wrong. How is Grande supposed to know who is telling the truth? Is it Rightscorp with e-mail accusations? Is it the subscriber who calls in swearing they didn\u2019t do anything wrong?\u201d \u2013 from Grande\u2019s opening statement<\/sup><\/em><\/p>\n<\/blockquote>\n This intro came as a total surprise to the record labels, which were under the impression that responses from subscribers wouldn\u2019t be part of the defense. This wasn\u2019t just a hunch either, as the music companies previously asked Grande about the availability of this type of evidence during discovery.<\/p>\n At a deposition, a Grande employee testified that there wasn\u2019t any admissible evidence about customer calls that covered the accuracy of copyright infringement notices. <\/p>\n \u201cAt that time, Grande\u2019s witness testified that admissible information concerning customer calls regarding copyright infringement does not exist,\u201d the music companies informed the court. <\/p>\n \u201cIn particular, Grande represented under oath that it performed an adequate investigation of its conversations with customers and based on that investigation, it lacked knowledge of\u2014and therefore could not disclose to Plaintiffs\u2014the contents of any particular customer phone calls on this subject matter.\u201d <\/p>\n The opening statement at trial suggests otherwise. It wasn\u2019t what the labels expected and they felt ambushed. As such, they asked the court to preclude the evidence from being discussed during the trial.<\/p>\n Aside from contradicting the information obtained during discovery, the testimony should also be rejected as hearsay, the labels said. The ISP apparently wants to rely on testimony from someone who spoke with an accused subscriber, without identifying the person or detailing the piracy notice. <\/p>\n \u201cFurthermore, to the extent Grande seeks to introduce generalized testimony on this topic, it is clear that the proffer of unverified generic statements from unidentified customers is rank hearsay and does not satisfy the accuracy and trustworthiness requirements necessary to rely on any hearsay exceptions,\u201d the labels note. <\/p>\n In addition to surprising the labels with the innocent infringer issue, during its opening statement Grande also criticized the infringement notices directly. The notices were sent by anti-piracy outfit Rightscorp and are not reliable, the ISP argued.<\/p>\n According to Grande\u2019s attorney, the music companies have \u201cknown for years and years\u201d that Rightscorp\u2019s notices are problematic but consider them \u201clottery tickets\u201d with the potential to bring in hundreds of millions of dollars.<\/p>\n At the present trial, the labels want to show that Rightscorp\u2019s evidence isn\u2019t illegitimate. The notices were central to the BMG vs. Cox trial, which resulted in a $25 million damages award<\/a>. As such, evidence from that case could be relevant here. <\/p>\n The court previously restricted the potential use of that evidence to merely mentioning that Cox was found liable based on these notices. However, a new motion filed by the music companies requests permission to use emails and testimony that reference the case. <\/p>\n Grande fiercely objects and notes that the $25 million verdict wasn\u2019t the end of that case. The initial verdict was overturned, with BMG and Cox later reaching a confidential settlement<\/a>. <\/p>\n \u201cIf Plaintiffs were to introduce evidence regarding the Cox jury verdict, then Grande would have to respond with evidence regarding the evidence adduced (or not) at trial in Cox, the Fourth Circuit\u2019s reversal, and the parties\u2019 subsequent settlement. All of this would result in the inevitable \u2018trial within a trial\u2019 that is to be avoided at all costs,\u201d Grande notes. <\/p>\n At the time of writing, there\u2019s no public court order on the record labels\u2019 requests. In any case, the trial will continue, with or without the \u201cinnocent infringer\u201d and \u201cCox litigation\u201d evidence.<\/p>\n \u2014<\/em><\/p>\n A copy of the trial motions in limine to exclude the innocent infringer evidence and to introduce the BMG vs. Cox evidence are available here (1<\/a>,2<\/a>)<\/p>\n From: TF<\/a>, for the latest news on copyright battles, piracy and more.<\/p>\nRecord Labels vs. Grande Trial<\/h2>\n
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No Innocent Infringer Evidence?<\/h2>\n
Rightscorp and BMG vs. Cox<\/h2>\n