Cox Communications believes that key information was held back during the 2019 piracy lawsuit filed by several record labels, which led to a $1 billion verdict in their favor. While the court recognizes that some evidence was created after the fact, it sees no reason for a do-over, concluding that the ISP already received a full and fair trial.
Internet provider Cox Communications has been on the sharp end of several piracy lawsuits in recent years.
The biggest hit came three years ago when the Internet provider lost its legal battle against a group of major record labels.
$1 Billion Verdict
A Virginia jury held Cox liable for pirating subscribers because it failed to terminate accounts after repeated accusations, ordering the company to pay $1 billion in damages to the labels. This landmark ruling is currently under appeal. In addition, Cox challenged the verdict through another route as well.
In January, Cox filed a motion for relief from judgment at the Virginia federal court. The Internet provider argued that key evidence was concealed during the trial, which could have led to a totally different outcome.
The evidence in question pertains to the copyright infringement notices central to the case. Cox was held liable for failing to take action against pirating subscribers, despite receiving numerous notices that were based on evidence from the piracy tracking outfit MarkMonitor.
During the trial, the music companies presented a hard drive that contained copies of ‘verified’ music files that were allegedly pirated by Cox subscribers, suggesting that those were the original songs that were pirated between 2012 and 2014.
However, based on new information that surfaced in a lawsuit against fellow ISP Charter, Cox now believes that this hard drive evidence was recreated at a later date. This information wasn’t disclosed at trial and Cox accused the music companies of misrepresenting key evidence.
“The materiality of these misrepresentations and the prejudice to Cox could not be clearer: they were intended to — and did — fend off well-founded challenges to the admissibility of key pieces of evidence, the exclusion of which would have crippled Plaintiffs’ case,” Cox argued in January.
“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,” the ISP added.
These are strong allegations and the fact that they were lodged in a billion-dollar piracy lawsuit only adds to the weight. However, after reviewing the arguments from both sides, the court sees no reason to open the case back up.
Hashes are Hashes
U.S. District Court Judge Liam O’Grady acknowledges that some evidence was not disclosed by MarkMonitor at the time. However, the court believes that the ‘recreated’ evidence doesn’t change anything materially.
According to the court, it doesn’t matter whether the infringing files were verified before or after the fact. The verification process is based on file hashes, which don’t change over time.
“That these files may have been downloaded and verified in 2016 — after the Claims Period — is of no consequence,” Judge O’Grady writes.
“Indeed, the dates of the file downloads do not matter in the context of this case because, as fully explained at trial, files with matching hash values are identical regardless of when downloaded.”
Cox Already had Its Chance
The court also notes that Cox had received MarkMonitor’s statement of work before trial, which contained the 2016 metadata. So the ISP could have looked into the matter at the time if it had wanted to.
In hindsight, Cox may have done things differently. However, the court sees no reason to steer this matter toward a retrial and concludes that Cox already had its chance.
“[T]he Court does not doubt that Defendants received a full and fair trial here. The jury had ample and relevant evidence by which to render their verdict,” Judge O’Grady notes, denying Cox’s request.
While Cox’s attempt to get a do-over failed, its protest against the $1 billion damages verdict continues at the appeal court.
A copy of U.S. District Court Judge Liam O’Grady’s order on the motion for relief from judgment is available here (pdf)