Cox Can Use ‘Copyright Alert System’ Evidence in Piracy Case, Court Rules

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The so-called ‘Six-Strikes’ Copyright Alert System was once praised as an excellent tool to address online piracy.

Under the agreement, which included the major rightsholder groups MPA and RIAA, several large Internet providers in the US sent copyright infringement warnings to pirating customers.

After repeated alerts, these subscribers would face a variety of ‘mitigation’ measures but their accounts would not be terminated. Although rightsholders and ISPs appeared happy with the deal, it was shut down nearly three years ago.

Instead of cooperating with ISPs, several RIAA members then took another approach by filing lawsuits against Internet providers for not doing enough to curb piracy. This also happened to Cox, which was sued for failing to disconnect repeat infringers.

The lawsuit between several music companies and Cox is scheduled to go to trial later this month. Interestingly, the ISP is now planning to use the aforementioned Copyright Alert System (CAS) as evidence in its favor.

Cox was asked to participate in the voluntary anti-piracy scheme years ago but chose not to do so. According to the company, its own “strike” policy was already functioning well and perhaps even better than the industry-approved alternative.

This line of reasoning is also relevant for the ongoing legal dispute, Cox believes. The RIAA members disagreed and previously asked the court to exclude it from the trial. However, according to a recent ruling from Judge Liam O’Grady, the ISP is permitted to use it in its favor.

“Defendants are permitted to put on evidence about the Copyright Alert System as well as its own graduated response system, the Cox Abuse Ticket System,” O’Grady writes.

In addition, Cox is also allowed to present evidence about the policies at other ISPs, as identified in related reports, as long as it is relevant to the case.

This is a clear setback for the music labels which argued that the policies and actions of other ISPs and the CAS are irrelevant. It doesn’t matter whether Cox’s own anti-piracy system was reasonable or effective in comparison with other providers, they said.

The court disagreed, however, but it also brought some bad news for Cox.

The ISP planned to cite internal research to suggest that 96% of subscribers stopped receiving notices after the 5th warning. This was concluded in 2010 and resulted in the ISP’s belief that its “graduated response” system was effective.

According to the music companies these conclusions, of which the underlying data is no longer available, were based on a “mess of misleading calculations.” As such, they wanted it excluded from the trial.

Judge O’Grady agreed with the music companies. After reviewing the arguments from both sides, he concludes that there is no adequate foundation for the information presented in the “96% Stop By 5 Notices” evidence.

“Defendants have had ample time to produce such a foundation, and failed to do so. Discrepancies in numbers and figures as detailed in Plaintiffs’ briefs raise an alarming number of questions that demand the underlying data be produced, not just the emails Defendants offer in support,” O’Grady writes.

With these and various other motions dealt with, the trial will soon get underway. While some boundaries have been set, there is still plenty left to argue over.

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A copy of U.S. District Court Judge Liam O’Grady’s order is available here (pdf).

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