Internet provider Charter Communications is one of several companies being sued for turning a blind eye to pirating subscribers.
These lawsuits, filed by dozens of major record labels and music companies, allege that Internet providers fail to terminate accounts of repeat infringers.
This is no trivial matter, as a similar suit resulted in a billion-dollar damages verdict against Cox late last year. This is a fate rival ISP Charter hopes to avoid so the company is doing all it can to refute the claims.
That defense involves a thorough inspection of the evidence. In this case, that is heavily based on the copyright infringement notices that were sent by anti-piracy company MarkMonitor, which acted on behalf of the RIAA.
$1.6 Billion Damages Claim
These notices are the basis for a $1.6 billion damages claim currently hanging over Charter’s head. To see what they’re up against exactly, the ISP asked MarkMonitor to produce detailed evidence on its piracy notices, its tracking system, as well as communications it had with the RIAA.
This request was subpoenaed earlier this year as part of the regular discovery process but Charter was not pleased with the response.
“Rather than perform the promised reasonable search to respond to Charter’s subpoena, MarkMonitor ultimately produced a scant 15 documents comprising 94 pages, and insists that it possesses virtually none of the requested material,” Charter informs the court.
This sentence comes from a motion to compel MarkMonitor to comply with Charter’s subpoena. It was originally submitted to a California court but has now been transferred to the District of Colorado, to merge with the main case.
Hundreds of Thousands of Missing Evidence Packages?
Charter believes that MarkMonitor is holding information back, as it claims not to have information which it was contractually obligated to preserve. This seemingly includes “evidence packages” related to the copyright infringement notices that are at the core of the case.
“Indeed, taken literally, MarkMonitor’s denials that it possesses responsive evidence would mean that it lacks the very data the Plaintiffs’ interrogatory responses indicate will be used to prove infringement,” the ISP states.
“For example, MarkMonitor claims it does not possess any of the following: Each infringement notice is supposed to be accompanied by an evidence package. While Plaintiffs claim that over 660,000 infringement notices were generated by Markonitor and sent to Charter, only 357,000 evidence packages have been produced. Where are the remaining 300,000 ‘evidence packages’?”
Charter also wants to see the source code of MarkMonitor’s anti-piracy tracking system. Among other things, it wants to know how this interacted with Audible Magic’s music fingerprinting system to identify the allegedly-pirated music tracks.
On top of that, the ISP is also missing responses to questions about the Copyright Alert System, which both the major labels and MarkMonitor were connected to. This is relevant, according to Charter, as this anti-piracy agreement didn’t require ISPs to take drastic actions following repeated piracy warnings.
MarkMonitor’s Communications with the RIAA
Finally, Charter notes that MarkMonitor should disclose its communications with the RIAA. This could be relevant for the case as well, especially when considering that the piracy tracking outfit apparently allowed the RIAA to send notices under a variety of ‘accuracy levels.’
Charter would like to know which accuracy level the RIAA picked, and why.
“The MarkMonitor-RIAA contracts indicate that there were various options available, related to the level of accuracy in MarkMonitor’s infringement detection. What level of accuracy was MarkMonitor directed to employ, and why?” Charter writes.
“What was MarkMonitor told regarding the purpose of sending infringement notices, and the supposed efficacy of those notices? What did MarkMonitor tell the RIAA on these issues? These are all critical issues in the litigation, and MarkMonitor has provided no explanation why documents bearing on them would be protected from production.”
The ISP asks the court to compel MarkMonitor to hand over this information, as required by the subpoena. And if it doesn’t have any of the requested information, it should explain how it was destroyed or lost.
A copy of the motion to compel compliance with the subpoena, which is now under review at the Colorado federal court, is available here (pdf)