US internet service provider (ISP) Cox Communications is arguing that BitTorrent cannot be labelled as a tool for illegal downloading, since the technology is routinely used for many legitimate purposes as well.
Cox Communications is the seventh biggest broadband ISP in the US with 4.3 million customers. In November 2014, BMG Rights Management and Round Hill Music sued Cox for not terminating customer accounts being used frequently to download and share pirated music content.
One year later, the case is now set to go to trial, but Cox has filed a motion asking that the court bar the use of any material that attempts to equate torrenting with copyright infringement, out of concerns that such material would mislead the jury during the trial, according to TorrentFreak.
"Plaintiffs seek to introduce testimony and third-party hearsay — with inflammatory statements such as 'File-Sharing Is Really About Piracy' — as proof that BitTorrent use equates to the existence of infringement," Cox stated in the motion.
"Once they have argued that BitTorrent use is automatically infringing, Plaintiffs seek to introduce other testimony and documents showing that some proportion of data traffic on Cox's network is associated with BitTorrent in order to mislead the jury into thinking that Cox knew or should have known about the infringement that Plaintiffs allege."
Mere innuendo about BitTorrent is unacceptable
Cox adds that while BMG Rights Management and Round Hill Music are welcome to prove that specific Cox customers did use its network to infringe the plaintiffs' copyrights, they cannot use "mere innuendo" to prove that BitTorrent inherently allows users to infringe copyrights.
"Plaintiffs have no evidence that most or all use of BitTorrent, which is simply a communication protocol, constitutes infringement of Plaintiffs' copyrights. Plaintiffs' attempt to equate BitTorrent use with infringement of their copyrights would mislead the jury, and any marginal relevance about people's general use of BitTorrent is substantially outweighed by the risk of prejudice and confusion," Cox stressed.
"Furthermore, statements in Plaintiffs' proposed exhibits about BitTorrent are inadmissible hearsay because they are out-of-court statements that Plaintiffs seek to offer for their truth."
BMG Rights Management and Round Hill Music have previously argued that Cox refused to terminate the customer accounts found to be pirating content because it would lose revenue.
This claim is probably not that far from the truth as ISPs around the world have all refused to block access to popular torrent sites like the Pirate Bay until they received court orders. Customers who download a lot of content consequentially use a lot of bandwidth, which means ISPs can charge premium prices for faster speeds and more bandwidth if the user goes over their monthly limit.
Cox says copyright holders are trolls
On the other hand, Cox has made some accusations of its own – claiming that BMG Rights Management and Round Hill Music are the equivalent of a copyright "troll" and using "extortionist" measures to gain information about Cox customers they claim committed copyright infringement.
Both BMG Rights Management and Round Hill Music are clients of Rightscorp, a US anti-piracy firm that uses patent-pending technology to identify internet users it suspects of repeatedly illegally downloading content. The firm sends out thousands of cash settlement demands every year, threatening users that they could be liable for penalties of up to $150,000 (£99,000) in court if they don't settle.
When the case goes to trial, Cox will seek to prove that Rightscorp illegally harvested data on Cox customers by violating private investigation and debt collection licensing laws, so of course, the plaintiffs have filed a motion asking the court to prohibit the use of this evidence.