No Ban for ‘Stealing’ and ‘Theft’ Terms During Cox’s Piracy Liability Trial

[Matrix]

Music publisher BMG and Internet provider Cox are gearing up for a new trial. Having learned from the first one, Cox has asked the court to preclude BMG from using inflammatory and derogatory statements, as well as terms such as "stealing" and "theft" when referring to copyright infringement. However, the court sees no reason for such a ban.

Earlier this year, the Court of Appeals for the Fourth Circuit overturned the $25 million piracy liability verdict against Internet provider Cox.

The panel of three judges concluded that the district court made an error in its jury instruction and ordered a new trial.

This means that music publisher BMG Rights Management and Cox will go head to head again in a new trial, which starts next week. Both parties are working on the final preparations and have filed a series of motions to preclude certain information from the proceedings.

One request, submitted by the Internet provider, stands out as it deals with terminology used to describe copyright infringement. The entire case revolved around Cox’s alleged failure to disconnect “repeat copyright infringers.”

While Cox doesn’t deny that copyright infringement is the central issue, it does object to some of the terminologies BMG used during the previous trial.

During the opening statement, BMG’s lawyer stated that Cox aided and abetted “stealing,” “illegal conduct,” and “illegal infringement,” among other things. In addition, Cox accuses the lawyer of making other prejudicial statements.

The ISP, therefore, asked the court to ban argumentative statements that prejudice Cox and risk confusing the jury. In addition, terms such as stealing or theft should be prohibited as well.

“Cox requests a ruling that requires BMG’s counsel to refer to the alleged conduct as an ‘alleged violation of the Copyright laws,’ ‘alleged infringement of BMG’s Copyright rights,’ or something similar — not stealing, theft, or any other related term,” the ISP asked.

During the first trial, the court acknowledged that the use of the word “stealing” by BMG’s counsel was inappropriate. At the time, Cox had no reason to believe that BMG would use these characterizations, but that’s different now, hence the request.

“Based on the existing record, however, Cox now has reason to believe that BMG’s counsel will indeed engage in the same improper practice and thus seeks a preemptive order restricting BMG’s counsel from doing so,” Cox writes.

In an order issued a few days ago, US District Court Judge Liam O’Grady doesn’t share Cox’s concerns. According to the Judge, terms such as “stealing” and “theft” are not a major problem.

“Specifically, the Court does not find it appropriate to bar BMG from referring to copyright infringement as stealing, theft, or some other related term, as such language is not unduly prejudicial to Cox,” the order reads.

Judge O’Grady expects that both sides will stick to the rules during their opening statements. Should any objectionable issues arise, these can be dealt with during the upcoming trial, which Cox will start without a DMCA safe harbor defense.

While Cox’s request to exclude the “stealing” and “theft” terminology may be unusual, it’s certainly not unique. Previously, the file-hosting service Hotfile submitted a similar request when it went to trial against the MPAA. This request was granted.

 

Source

[straycat19]

Considering the makeup of juries that tend to be composed of mainly middle aged people, this is not good news for Cox, nor for other ISPs.  If the verdict goes against Cox again, and is upheld this time, then that would set a bad precedent for any ISP who allowed a repeat offender (repeat meaning more than once) to have service on their network.  Since it is very easy to limit torrent traffic (a university where I took a class a couple years ago limited it to 1.4kbps making it useless) it would be easy for all ISPs to block or limit it thereby making torrents useless.

 

I think the comparison to Hotfile was wrong since there is no comparison between a 'cloud' provider and an ISP.  However, in a conversation with a federal attorney he mentioned that there is always the fallback option of the federal government taking ISPs and storage providers of copyright content to court under the RICO statutes.  Which has become of a kind of catch-all law when they can't get a conviction on anything else since the elements of proof are simple, there is an ongoing conspiracy to commit an illegal act.  The punishment not only results in jail time but the federal government can take all the assets of the parties convicted under the statute. In other words the government could take the financial resources of the ISP and all the defendants plus any property they own.  He said the only reason they haven't used it more is there is not enough warehouses to store all the computer equipment that would be confiscated and held pending the outcome of the trials that could take decades.

[steven36]

6 hours ago, straycat19 said:

Considering the makeup of juries that tend to be composed of mainly middle aged people, this is not good news for Cox, nor for other ISPs.  If the verdict goes against Cox again, and is upheld this time, then that would set a bad precedent for any ISP who allowed a repeat offender (repeat meaning more than once) to have service on their network.  Since it is very easy to limit torrent traffic (a university where I took a class a couple years ago limited it to 1.4kbps making it useless) it would be easy for all ISPs to block or limit it thereby making torrents useless.

If you are behind a vpn there  is no way to tell if you are using BitTorrent  or if you're using YouTube  so it bypasses  any throttling attempt or warnings you may get from and isp as long as you use a  kill switch encase a vpn drops . It dont affect the  major ISPs  who have been working with Anti Piracy voluntary since 2012  because they always complied with sending warnings out, it only effects providers who didn't send out warnings .

 

People who have  been using the  major ISPs have ether been using a vpn or went to downloading in the cloud or both every since there ISP sent them warnings years ago.  In this day and age you can buy a seed box  or you can let some site outside the USA do the torrenting for you   and just download or stream them from the cloud  behind https .  This is just were certain ISPs didn't make a deal with the devil and continued to let there users do what they want and  if you dont use a vpn the iSP can see all you're traffic on BitTorrent and now there being held liable  .

 

My ISP never sent out warnings but that dont mean some BitTorrent troll couldn't  get my IP and take me to court anyway so i hoped on the vpn train years ago. There is no law saying isps have to send out warnings,  but there is no law saying they cant be sued for not at lest trying to prevent there users for downloading from BitTorrent.. Preventing people from doing it  is mostly out there hands, with vpn and/or the cloud, but doing nothing to try to stop it is doing nothing.