Music companies don’t want ISPs to bring up “human rights” and “spying” in piracy trials.

Teddy Sagi
Reading time: 5 minutes

Several big music companies will say in court that Bright House Networks isn’t doing enough to stop piracy. Both groups have asked the court to ban bringing up specific topics before the jury as part of their preparations. For example, the music companies don’t want the ISP to say that cutting off Internet access violates human rights.

Three years ago, Warner Bros. and Sony Music, two of the biggest music companies in the world, sued the Internet provider Bright House Networks.

The record companies said the provider wasn’t doing enough to stop subscribers from pirating. In particular, they noted that the ISP didn’t eliminate repeat offenders.

The parties have been back and forth in court with accusations and arguments since filing the case. Recently, both sides asked for summary judgments, hoping to get an advantage at the start of the trial. These plans did not work, so the case is now moving forward.

The legal battle should end in a few weeks. Before the trial can start, they need to take care of some unfinished business. In particular, the ISP and music companies want to limit what evidence and arguments the other side can show to the jury.

These legal motions can give both sides an interesting look at the biases and ways of the trial. Recent court documents show that this case is the same.

No Mention of Human Rights

A few days ago, the music companies sent a 19-page motion to the Florida federal court asking for various restrictions. For example, they don’t want Bright House to say that cutting someone off the Internet violates their human rights.

“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.

Copyright owners point out that this claim isn’t much proof. Also, they say that the DMCA says that cutting off access to the Internet is one way to stop piracy.

The idea of human rights is not new. Frank La Rue is a United Nations rapporteur. He spoke out against rules and laws that would cut people off from the Internet. The rapporteur said that firing people for piracy would be against their human rights.

The music companies don’t agree and even go one step further. In their motion, the record labels also want to stop Bright House from saying that it is “unfair” to remove subscribers who broke the rules.

Spying, Setting Prices and Taking Advantage

Problems with the Internet aren’t the only thing to worry about. The music companies are also concerned that Bright House will use words like “spying” or “surveillance”.

“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.

Lastly, the labels don’t want Bright House to talk about allegations. For instance, the music industry fixes prices or that music companies exploit some smaller artists through bad 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

Music companies aren’t the only ones trying to take charge of the story. Bright House also put in a motion in limine asking for certain limits. For example, the ISP doesn’t want the music companies to say that many customers’ accounts were shut down because they didn’t pay their bills.

Also, the music companies shouldn’t be able to show the jury “admissions” of piracy by subscribers. The ISP says that these statements are hearsay and don’t show that Bright House knew about this activity. As a result, they might make the jury confused.

“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 Limiting and Keeping an Eye On

Bright House also says that the music companies shouldn’t be able to say that traffic analysis and other network monitoring technologies. These techniques could have helped determine if subscribers were using file-sharing apps.

This idea may be accurate in a technical sense, but it is by no means unarguable. The same is valid for blocking ports and slowing them down. These measures could stop illegal file-sharing. But they would also slow legal file transfers, which is probably against FCC rules.

“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 court will now look at the motions from both sides. Then they will decide if any of the issues should be left out of the trial. After a few weeks, the case will move forward when the decision is expected.

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