17 January 2022CopyrightMuireann Bolger

Cox claims data 'lies' led to $1bn damages

Major music companies including Sony, Universal and Warner submitted false evidence in an infringement case that resulted in a landmark $1 billion verdict, internet service provider (ISP) Cox Communications has alleged.

Cox filed the lawsuit citing ‘serious misconduct’ on the part of the companies at the  US District Court for the Eastern Court of Virginia on January 14, in a development first reported by TorrentFreak.

In the filing, the ISP challenged the 2019 judgment, holding that it was based on “deliberate lies” that concealed crucial evidence.

“Both before and at trial, Cox objected to plaintiffs’ evidence of direct infringement on the basis that it was created after the fact and was therefore unreliable and inadmissible—but plaintiffs repeatedly denied that was the case, and they did so falsely,” said Cox in the filing.

According to the ISP, evidence filed in similar litigation against another ISP, Charter Communications, confirmed that the 2019 judgment was based on evidence created years after the alleged infringement by Cox occurred.

New evidence

At the 2019 trial, the music companies presented notices purportedly identifying the infringing audio files allegedly possessed by Cox subscribers. They then introduced a spreadsheet from domain name registrar MarkMonitor, which they said showed that the infringing files had been verified as containing copyrighted works.

During the proceedings, Cox repeatedly challenged the authenticity, foundation, and provenance of this evidence, but the court accepted that the exhibits presented were produced during or before the 2013–2014 claims period, noted the ISP.

But Cox has now insisted that it has gained the requisite evidence showing that the allegedly infringing audio files were downloaded by MarkMonitor and subjected to Audible Magic verification years after the notices were sent.

According to Cox, the music companies not only compiled a hard drive of the allegedly “infringing” files in 2016—two years after the relevant 2013–2014 claims period—but also subjected those files to verification in 2016 and then destroyed that data.

Consequently, the ISP has argued in its latest lawsuit that the crucial piece of evidence cited by the companies three years ago, “did not in fact document the verification of the downloads that plaintiffs used to prove infringement”.

Active concealment

These misrepresentations, explained Cox, were made possible by the companies “active concealment throughout the case of the 2016 project and the evidence that would have undermined the foundation for and the credibility of their infringement evidence.”

By taking this action, the ISP contends that the music companies evaded well-founded challenges to the admissibility of key pieces of evidence, the exclusion of which would have “crippled” their case at the time.

“The bottom line is that plaintiffs lied. They lied to Cox; they lied to the court; and they lied to the jury. And they rode those lies to a $1 billion judgment,” concluded Cox.

The ISP is seeking relief from the 2019 judgment and has requested that the court make an indicative ruling that it is inclined to grant the motion or, at a minimum, that the motion raises a substantial issue warranting further consideration on remand.

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3 January 2017   Music company BMG Rights Management has hit back at an appeal filed by internet service provider Cox Communications against a copyright infringement ruling.
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