Last weekend, we reported on a rather peculiar legal request from a group of major record labels.
The companies, which will go to trial against Internet provider Grande later this month, want to know whether potential jury members read TorrentFreak.
In theory, it could be an attempt to get well-informed jurors on the bench. However, it’s also possible that the labels see our reporting as biased. That second scenario seems more likely based on some new information we have received.
This week the same record labels, including Sony Music Entertainment, Universal Music, and Warner Bros Records, mentioned TorrentFreak again. This mention is part of a motion in another lawsuit, the one against ISP Bright House. This case also revolves around liability for pirating subscribers.
Before we highlight the TorrentFreak mention, some background information on the lawsuit is required.
In short, the labels argue that the ISP is liable for pirating subscribers because it failed to disconnect repeat infringers. Bright House disagrees. Among other things, it pointed out that under the Copyright Alert System, which the labels took part in, ISPs were not required to disconnect repeat infringers.
Last month. the ISP asked the court to take “judicial notice” of several documents related to the Copyright Alert System. This included the memorandum of understanding, as well as several news reports – including one of our articles – that reference statements from participating ISPs such as AT&T and Verizon.
These “judicial notices” basically ask the court to accept certain facts into the record that can’t be reasonably doubted. With regard to the news articles, Bright House doesn’t ask the court to accept that all information in them is factual, but simply that the ISPs did indeed make these statements.
This request wasn’t well-received by the record labels, for a variety of reasons.
In their response, the labels point out that three of the five documents are not “press releases” that were “issued by the Internet service providers.” Instead, they point to news articles or blog posts of which the “reliability” is “suspect.”
As an example of these suspect articles, the record labels highlight one of our articles but also reports from Ars Technica and Business Insider.
“Exhibit 5 is another article, this one written by ‘Ernesto’ (no last name provided), for a website called ‘TorrentFreak.’ Far from being a press release issued by AT&T, the article purports to describe leaked AT&T documents that TorrentFreak obtained,” the response reads.
We fully stand behind the accuracy of the reported information, which was never disputed and is certainly reliable. That said, the record labels do have a point. Our report is not a direct press release from an ISP and that applies to the other news reports too.
We simply reported on information that we received from an employee. The two other news articles are not press releases either, although they do include statements that were attributed to ISPs that participated in the Copyright Alert System.
That said, the labels don’t even want to accept the ISPs’ official press releases (e.g.), as these apparently aren’t “self authenticating.” Even the publicly published memorandum of understanding (MOU) doesn’t pass muster, the companies write.
“Taking judicial notice of this document is inappropriate, as there is no indication from the document itself that it in fact is the final MOU or that the MOU was not amended, terminated, or qualified at some later point in time,” the labels write.
What we have here is an ISP that is trying to show that other ISPs who participated in the music industry sanctioned Copyright Alert System did not terminate any subscribers. The record labels are trying to block this, as they do not agree with or indeed like this argument.
As said before, the labels do have a point about the news articles not being press releases. That said, Bright House may not have to jump through hoops if they simply want to argue that copyright alerts didn’t automatically lead to terminations.
If we pull up an archived version of the official Copyright Alert System website, which was backed by the music industry, we read the following:
“While the ISPs can modify the Mitigation Measures in a manner consistent with their own policies, ISPs will not use account termination as a Mitigation Measure.”
Even better, perhaps, the same site also archived all of the ‘final’ MOU, including all the amendments that were later made.
We’re not legal experts, but this appears to be fairly solid, coming directly from the source. That said, the record labels will likely disagree. In any case, it’s not up to us to present any arguments.
Finally, we want to briefly come back to the record label’s comment that our reliability is suspect. That’s an interesting argument, as our reporting has repeatedly been cited by copyright holders in the past.
For example, the RIAA used our coverage as evidence in comments it made to the U.S. Copyright Office. Similarly, the International Intellectual Property Alliance mentioned our reporting repeatedly in public submissions to the US Government.
In fact, even Sony Music Entertainment, which today questions our reliability, cited our reporting in an earlier submission to the US Trade Representative. Apparently, our coverage about Google’s takedown efforts was pretty solid according to the company.
While we realize that the stakes and circumstances are different in this case, we just want to set the record straight.
A copy of Bright House’s request for judicial notice is available here (pdf). The response from the record labels can be found here (pdf).