As previously reported, Cox Communications is facing a lawsuit brought against it by BMG Rights Management and Round Hill Music, over the alleged piracy of its subscribers. This case could have a major effect on how ISPs respond to DMCA notices. The judge had already ruled that Cox does not qualify for a safe harbor defense under its current policy, but the case still has to be tried by a jury. Both Cox and BMG have filed numerous motions to exclude the other side from presenting certain evidence or preventing or limiting certain individuals from testifying. Last week, the judge presiding over the case ruled on several of the motions, granting some while denying others, and it's mostly bad news for Cox.
Cox has publicly stated that Rightscorp, the company filing the infringement complaints on behalf of the two rights holders in this case, has acted as an extortionist. Cox claims Rightscorp is using accusations of piracy to intimidate targets into settling, and that the company is motivated by its own debt. In response, BMG filed a motion to exclude the "introduction of irrelevant information about Rightscorp." That information includes but is not limited to anything regarding Rightscorp's finances, as well as Rightscorp's business practices after 2011, including phone scripts and call recordings. Additionally the motion asks that Cox be prohibited from using derogatory terms like "troll" or "extortionist" to describe Rightscorp. The judge has granted the motion.
Several other motions by BMG have been granted. Cox is prohibited from mentioning the DMCA practices of other ISPs. Cox is also not allowed to use "deceptive statistics" to argue that its current policy is effective at curbing piracy. A motion to exclude the argument that Cox is not liable for infringement on its networks by anyone other than named account holders was granted in part, with a comment by the judge saying, "Evidence that users other than named account holders and authorized users undertook directly infringing activity may be used for the purposes of cross-examination."
Cox has filed some motions of its own, including one to exclude presenting BitTorrent usage as proof of piracy. This motion has been denied by the court. Although the technology itself is neutral, and file-sharing can certainly be done for legal purposes, the judge has decided to allow the plaintiffs to present merely using BitTorrent as proof of copyright infringement.
However there is some good news for Cox in this case. Cox had argued that Rightscorp's deletion of its old piracy tracking code constituted destruction of evidence, and the court agreed. Cox was seeking a summary dismissal of the case, but didn't get what they were hoping for. However, the court will give an appropriate jury instruction to inform them of this. Cox is also allowed to mention this destruction of evidence in their opening statement.
Is the judge right to allow BitTorrent usage as evidence of Piracy? What are your thoughts on the other rulings? Leave your comments below.