A group of major record labels is running a legal campaign against Internet providers which they accuse of not doing enough to deter persistent copyright infringers.
This has already resulted in a massive windfall in their case against Cox, where a jury awarded a billion dollars in damages. In a few weeks, the music companies will be hoping for the same outcome following the trial against ISP Grande Communications.
Similar to the Cox case, the music companies – including Capitol Records, Warner Bros, and Sony Music – argue that the Internet provider willingly turned a blind eye to pirating customers. As such, it should be held accountable for copyright infringements allegedly committed by its users.
In preparation for the trial, both sides have submitted requests to keep information away from the jury members. These motions in limine, as they’re called, can be used to prevent misleading or prejudicial information from influencing the jury.
The record labels, for example, asked to exclude certain evidence regarding Rightcorp, the company that sent the anti-piracy notices to Grande. These notices are essential evidence in the case as Grande is accused of not properly responding to them.
Specifically, the music companies asked the court to exclude “irrelevant or unfairly prejudicial” evidence or arguments about Rightscorp’s business practices, the company’s finances, or the allegation that the anti-piracy firm destroyed evidence.
A few days ago Grande responded to this request. According to the ISP, it would be unfair to exclude these broad categories, especially because the information is directly relevant to the reliability of key witnesses.
As we have documented here in the past, Rightscorp’s financial situation isn’t very positive. It manages to survive with financial help from the record companies, a point not lost on Grande.
The ISP questions whether the music companies’ trial witnesses, Rightscorp’s Gregory and Boswell and Christopher Sabec, are still credible given the circumstances.
“In assessing the credibility of Mr. Boswell and Mr. Sabec, the jury should be permitted to consider not only Rightscorp’s financial relationship with Plaintiffs, but also evidence regarding Rightscorp’s dire financial condition,” Grande notes.
“In short, Rightscorp’s relationship with Plaintiffs is the only thing keeping Rightscorp’s business afloat, and the jury should know that when evaluating testimony from Mr. Boswell and Mr. Sabec regarding the reliability of the Rightscorp system and the evidence it generates.”
Grande concedes that Rightscorp technically has no direct financial interest in the outcome of the lawsuit. However, it notes that the company certainly has a strong interest in proving that its notices are reliable.
In addition to the financial situation, Grande also questions the ethical side of Rightcorp’s business practices.
The piracy tracking outfit made a name for itself by demanding settlements from hundreds of thousands of alleged pirates. This business model is one that the music companies were aware of and frowned upon, Grande argues
The ISP points to emails it obtained from the music companies through discovery which reference an article that describes Rightscorp’s call center script as “terrifying extortion.”
In addition, Grande points out an email from Sony where the music company notes that it wants to keep its distance from Rightscorp, describing it as “publishers using 3rd parties to milk consumers.” Despite these comments, its lawsuit now relies on evidence provided by the same company.
“Now, however, having purchased evidence from Rightscorp, Plaintiffs want to present Rightscorp’s notices as legitimate evidence of infringement and intend to argue that Rightscorp is a credible business with a reliable system,” Grande notes.
The ISP believes that the jury should know about Rightscorp’s financial situation and business practices, including the call center script. This should allow it to make a better assessment of the Rightscorp witnesses’ credibility.
The music companies disagree and, at the same time, submitted several responses to Grande’s requests to have information excluded from the trial.
For example, Grande asked the court to exclude evidence which shows that the company terminated customers for non-payment. However, the music companies argue that this information is crucial, as it shows that terminations were taking place.
“It is understandable that Grande wants to keep from the jury evidence that it terminated customers for non-payment. Such evidence completely eviscerates an argument Grande is likely to make: that because of the importance of internet access, termination of service is a drastic measure that should be used sparingly, if at all.”
The music companies feel that it’s important to highlight that terminations were not a problem when the ISP itself was affected.
“Moreover, evidence that Grande terminated customers when its property or services were being stolen, but refused to do so when others’ property was being stolen, is independently admissible as it is highly probative of Grande’s willfulness,” the music companies add.
It is now up to the court to decide on these and various other motions to determine what evidence can be discussed at trial. Later this month the jury will be selected. As reported earlier, the jury members will be first asked several selection questions, including whether they read TorrentFreak articles.
A copy of Grande’s response to the music companies’ motion in limine is available here (pdf), and the music companies’ opposition can be found here (pdf).