In 2019, several major music companies filed a lawsuit against Internet provider RCN. Helped by the RIAA, they argued that the ISP turned a blind eye to pirating subscribers.
The lawsuit is in many regards similar to the ones against other ISPs, such as Cox, Grande, and Charter, which were all accused of failing to terminate the accounts of repeat infringers.
How Internet providers respond to these allegations also shows quite a bit of overlap. Most have attacked the piracy evidence that was collected by companies such as Rightscorp and MarkMonitor, for example. However, each case also introduces some unique angles.
With hundreds of millions in potential damages at stake, ISPs try to use any and all means to fight back. Thus far, RCN has asked the court to dismiss the lawsuit and argued that the underlying piracy evidence was fraudulent. However, both these efforts failed.
iTunes DRM Removal
As the case moves to trial, both parties have collected evidence to aid their viewpoints. RCN focuses heavily on the piracy tracking evidence from Rightscorp but has also brought up another topic; the decision by major record labels to remove DRM from the iTunes music store in 2009.
This decision was made two years before the timeframe covered in the piracy liability suit. Nonetheless, RCN believes that it is relevant. Among other things, the removal of DRM may have made it easier to pirate.
“It is certainly reasonable to infer that this decision—along with Plaintiffs’ continuing decision not to re-impose the use of DRM—has affected the frequency with which Plaintiffs’ music is shared over peer-to-peer networks,” RCN previously argued.
RCN asked the labels to share the records it has on the DRM removal decision but none were found. This prompted the ISP to learn more about the music industry bosses that were involved in the DRM removal process. However, the labels objected to this, arguing that the DRM issue is irrelevant for the “repeat infringer” lawsuit.
This standoff resulted in a discovery dispute where RCN asked the court to compel the labels to reveal who were responsible. Among other things, the ISP says that the DRM removal could mean that the labels failed to prevent piracy themselves, which in theory could lead to lower damages.
‘DRM Issue is Irrelevant’
This week the New Jersey federal court ruled on the matter. Without going into much detail, Magistrate Judge Tonianne J. Bongiovanni denied the request. This means that RCN can’t hear out music industry insiders on the DRM removal motivations.
“The Court finds that the information sought, which concerns a decision Plaintiffs made two years prior to the first instance of copyright infringement at issue in this case, is irrelevant,” Bongiovanni writes.
“Despite RCN’s arguments to the contrary, the Court finds that the decision made by Plaintiffs in 2009 neither bears on Plaintiffs’ request for damages nor their alleged duty to mitigate same,” she adds.
This decision will come as a disappointment to the ISP. However, there was also some positive news for the company.
More Discovery Disputes
Among other things, Judge Bongiovanni granted RCN’s request that requires Rightscorp to share communications with clients “about the importance of monitoring the internet for infringement of certain songs over others” or “if a client thought it was only important to monitor a certain song for a short period of time.”
In addition, Rightscorp must now produce a copy of its SQL database containing a variety of data obtained from individual BitTorrent users, to the extent these data apply to RCN-related information.
According to the Judge, this database information will help the ISP to determine the “accuracy of Rightscorp’s alleged detections and to test the veracity and completeness of its alleged infringement evidence.”
The labels also booked a small victory in the discovery dispute as the Judge ordered RCN to hand over, or open up for inspection, a sample of emails and attachments the ISP previously held back over privacy concerns.
At this point, it’s unclear whether these information requests will help either side. That will eventually be revealed at trial, where both sides will prevent their full arguments to the jury.
A copy of Magistrate Judge Tonianne J. Bongiovanni’s order on the discovery disputes is available here (pdf)