Three years ago, several of the world’s largest music companies including Warner Bros and Sony Music sued Internet Provider Bright House Networks
The recording labels accused the provider of not doing enough to stop pirating subscribers. Specifically, they alleged that the ISP failed to terminate repeat infringers.
Since the filing of the complaint the parties have gone back and forth in court with various arguments and accusations. Most recently, both sides requested summary judgments, hoping to start the trial with an advantage. These efforts failed and the case is now moving forward.
The legal battle is set to conclude in a few weeks. Before the trial starts, however, some outstanding issues need to be resolved. Specifically, the ISP and music companies want to limit what evidence and arguments the other side can present to the jury.
These motions in limine can offer an interesting insight into the biases and framing both camps expect during the trial. This case is no different, as some recent filings reveal.
No Human Rights Mentions
A few days ago, the music companies submitted a 19-page motion to the Florida federal court, asking for various restrictions. For example, they don’t want Bright House to argue that terminating someone’s Internet access is a human rights violation.
“This assertion is irrelevant because ‘human rights’ (and international law generally) have absolutely no bearing on this case, and it would confuse the jury as to the legal standards at issue,” they write.
The rightsholders note that there is little evidence for this claim. In addition, they point out that the DMCA specifically mentions Internet terminations as an option to curb piracy.
The human rights angle is not completely novel. Previously, a report from United Nations rapporteur Frank La Rue spoke out against rules and laws that would cut people’s Internet access. Those piracy-related terminations would violate human rights, the rapporteur argued.
It is clear that the music companies disagree and they go a step further still. In their motion, the labels also want to bar Bright House from arguing that it is “disproportionate” to terminate subscribers after receiving repeated piracy notices.
Spying, Price Fixing, and Exploitation
Internet terminations are not the only topic of concern. The music companies also fear that Bright House will use terms such as “spying” or “surveillance” to refer to measures it could have taken to monitor file-sharing traffic.
“These inflammatory terms are not relevant to any element of liability and would only confuse, mislead, and unduly prejudice the jury,” the music companies write.
Finally, the labels don’t want Bright House to bring up price-fixing allegations in the music industry, or allegations that some smaller artists are being exploited by music companies through terrible contracts.
“Plaintiffs’ contractual relations with their artists and songwriters, and aged disputes about those contracts, are not relevant to any claim or defense, nor to any statutory damages factor,” the companies inform the court.
ISP Also Requests Exclusions
The music companies are not the only party trying to control the narrative. Bright House also submitted a motion in limine requesting various restrictions. For example, the ISP doesn’t want the music companies to bring up the fact that many subscribers had their accounts terminated after failing to pay their bills.
In addition, the music companies should also be excluded from presenting subscribers’ piracy “admissions” to the jury. These testimonies are hearsay and don’t prove that Bright House was aware of this activity, the ISP argues. As such, they might confuse the jury.
“To allow the jury to consider subscribers’ hearsay statements described as ‘admissions,’ particularly ones that do not relate to Plaintiffs’ works-in-suit, would be confusing and unduly prejudicial.”
No Throttling and Monitoring
Bright House further notes that the music companies should not be allowed to argue that deep packet inspection and other network-monitoring technologies could have helped to determine whether subscribers were using file-sharing applications.
This suggestion may be technically correct but it’s far from undisputed. The same applies to port blocking and throttling. While these measures could hinder illegal file-sharing traffic, they would also impact legal transfers, which likely violates FCC regulations.
“It is undisputed that P2P has many lawful uses, and Plaintiffs’ own purported expert agreed that any attempt to block or throttle P2P during the Claim Period would have been a potential violation of FCC regulations; unsurprisingly, he was also unaware of a single ISP that ever employed such methods.”
“Plaintiffs should not be permitted to argue that, to avoid liability for copyright infringement, BHN should have adopted novel, untested procedures that no other ISP adopted at substantial legal risk,” the ISP adds.
The motions from both sides will now be reviewed by the court, which must then decide whether any of the issues should be excluded from the trial. The decision is expected in a few weeks, after which the case will head forward.