Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”
In the past such drastic action was rare, but with the backing of legal pressure, ISPs are increasingly being held to this standard.
Billion Dollar Lawsuits
Several major music industry companies including Artista Records, Sony Music Entertainment, Universal Music, and Warner Records, have filed lawsuits against some of the largest U.S. Internet providers. This also includes Bright House, which is owned by Charter.
Through legal action, the music companies hope to win hundreds of millions of dollars in damages. These are not just theoretical claims as a federal jury handed down a billion-dollar award in a lawsuit against Cox Communications two years ago.
Bright House would like to avoid this fate at all costs. The ISP previously hit back accusing the record labels, the RIAA, and their anti-piracy partner MarkMonitor of sending inaccurate and deceptive takedown notices. This is in violation of the DMCA, the ISP argued.
A few months ago the Florida federal court dismissed this counterclaim. While the court didn’t rule on the alleged evidence shortcomings, it pointed out that Bright House didn’t terminate any subscribers as a result, so no real harm was done.
This dismissal came as a disappointment to Bright House, which hopes to have some leverage when the case goes to trial. However, the ISP is not giving up on contesting the evidence just yet. In a new filing submitted a few days ago, the company asks the court to sanction the record labels for allegedly destroying piracy evidence.
The motion for sanctions and curative measures is heavily redacted but it’s clear that Bright House believes that crucial evidence was destroyed. This information was central to (part of) the piracy notifications on which the repeat infringer claims are based.
“While 110,000 of these notices provide the foundation for Plaintiffs’ $1 billion damages claims against Bright House under Plaintiffs’ theory of the case, [REDACTED],” Bright House writes.
Most exhibits are redacted as well, which makes it hard to grasp exactly what was deleted. The readable parts suggest that evidence related to the reliability and accuracy of notices that were sent out between 2012-2015 is no longer available.
This information applies to MarkMonotor’s piracy tracking system as well as Audible Magic’s services, which are used to verify that shared files are indeed copyright infringing.
“Bright House sought this information from Plaintiffs, RIAA, MarkMonitor, and Audible Magic during fact discovery. But it is no longer available, in material part, because [REDACTED],” Bright House writes.
Scantions and Surative Measures
The record labels previously argued that takedown notices themselves are sufficient to prove direct infringement, but the ISP clearly disagrees.
“Plaintiffs’ destruction of evidence has unduly prejudiced Bright House’s ability to challenge Plaintiffs’ direct infringement case — the bedrock of the entire lawsuit. In these circumstances, curative measures and sanctions are warranted.”
If the court agrees that sanctions are appropriate, it doesn’t automatically mean that the missing evidence can’t be cited during an eventual trial. This also became apparent when record labels were previously sanctioned in the Cox case.
However, in addition to sanctions, Bright House also requests curative measures, which could be more helpful if they’re granted.
The ISP specifically calls for the exclusion of evidence, special jury instructions that highlight the alleged errors, as well as permission to present information and raise arguments regarding the loss of evidence during trial.
A copy of Bright House’s motion for sanctions and curative measures is available here (pdf)