Music companies don’t want ISP to bring up “human rights” and “espionage” in piracy process *TorrentFreak

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Bright House Networks is on trial after accusing several major music companies of not doing enough to curb piracy. In preparation, both sides have petitioned the court to exclude subjects from presentation to the jury. For example, the music companies don’t want the ISP to argue that blocking Internet access is a human rights violation.

Three years ago, several of the world’s largest music companies, including Warner Bros and Sony Music, sued internet provider Bright House Networks

The record labels accused the provider of not doing enough to stop subscriber piracy. In particular, they alleged that the ISP failed to terminate repeat infringers.

Since the lawsuit was filed, the parties have been going back and forth in court with various arguments and allegations. Most recently, both sides have called for summary judgments, hoping to start the process with an advantage. Those efforts failed and the case is now moving forward.

The lawsuit is expected to be completed in a few weeks. However, before the process begins, there are still a number of open questions that need to be clarified. In particular, the ISP and music companies want to limit what evidence and arguments the other side of the jury can present.

those movements in Limin can offer an interesting insight into the prejudices and configurations that both camps await during the process. This case is no different, as some recent filings show.

No human rights mentions

A few days ago, the music companies submitted a 19-page application to the federal court in Florida, in which they called for various restrictions. For example, they don’t want Bright House arguing that cutting off someone’s Internet access is a human rights violation.

“This claim is irrelevant because ‘human rights’ (and international law in general) has absolutely no bearing on this case and would confuse the jury as to the legal norms at issue,” they write.

Rightsholders note that there is little evidence to support this claim. Additionally, they point out that the DMCA specifically mentions internet termination as an option to curb piracy.

The human rights perspective is not entirely new. Earlier, a report by United Nations rapporteur Frank La Rue spoke out against rules and laws that would cut off people’s internet access. These piracy-related layoffs would violate human rights, the rapporteur argued.

It’s clear that the music companies have a different opinion and are taking it a step further. In their motion, the labels also want to stop Bright House from arguing that it is “disproportionate” to terminate subscribers after receiving repeated allegations of piracy.

Espionage, price fixing and exploitation

Internet terminations are not the only issue of concern. The music companies also fear that Bright House will use terms such as “espionage” 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 damage the jury,” the music companies write.

After all, the labels don’t want Bright House to make accusations of price fixing in the music industry, or allegations that some smaller artists are being exploited by music companies through horrific contracts.

“The plaintiffs’ contractual relationships with their artists and songwriters and long-standing disputes over those contracts are not relevant to claims or defense, nor to statutory damages factors,” the companies inform the court.


ISP also requests exclusions

The music companies aren’t the only party trying to control the narrative. Bright House also filed an application 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 they failed to pay their bills.

In addition, the music companies should also be barred from presenting “piracy clearances” from subscribers to the jury. These testimonies are hearsay and do not prove Bright House was aware of the activity, the ISP argues. As such, they could confuse the jury.

“It would be confusing and unduly disadvantageous to allow the jury to consider testimonies described as ‘admissions’ by subscribers, particularly those that do not relate to the plaintiffs’ lawsuit works.”

No throttling and monitoring

Bright House also notes that music companies should not be allowed to argue that deep packet inspection and other network surveillance technologies may have helped determine whether subscribers are using file-sharing applications.

This proposal may be technically correct, but it is anything but uncontroversial. The same applies to port blocking and throttling. While these measures could prevent illegal file-sharing traffic, they would also affect legal transfers that are likely to violate FCC rules.

“It is undisputed that P2P has many legitimate uses, and the plaintiffs’ alleged expert agreed that any attempt to block or throttle P2P during the claims period would have been a potential violation of FCC rules; Not surprisingly, he also didn’t know of a single ISP that had ever used such methods.”

“Complaints should not be allowed to argue that, in order to avoid liability for copyright infringement, BHN should have employed novel, untested practices that no other ISP with significant legal risk has adopted,” the ISP adds.

Both sides’ requests will now be examined by the court, which will then have to decide whether any of the issues should be excluded from the hearing. The decision is expected in a few weeks, after which the case will move forward.

A copy of the Limine Music Companies application is available here (pdf) and Bright House’s application can be found here (pdf).

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