In high-stakes copyright suit, Cox’s “top infringers” beg for privacy

In November, BMG Music and Round Hill Music did what some copyright holders have long threatened: they sued a large ISP, Cox Communications, seeking to hold it responsible for the piracy taking place on its network.

Cox wasn't forwarding infringement notices sent out by Rightscorp, the digital copyright enforcer BMG and Round Hill had hired to send out millions of notices. (That company famously offers to settle copyright claims for $20 per song.) By effectively protecting determined pirates on its system, Cox was violating copyright law, BMG lawyers argue.

It's a case that has potentially big ramifications, and it's a gamble for the music publisher plaintiffs. If a judge finds Cox liable for the actions of users on its network, it will have implications for the whole cable industry. If a ruling goes the other way, the little leverage that an anti-piracy outfit like Rightscorp has could evaporate.

Seven months in, the litigation is heating up. The two sides squared off in Virginia federal court on Friday to resolve some hot issues about who's getting what information.

The most contentious issue thus far is a list of 500 "top infringers" that BMG sought to get, and the judge agreed the music company should be allowed to see. Cox has now provided most of those names, but dozens of users wrote to Cox, the judge, or both to proclaim their innocence and plead for Rightscorp and BMG to not receive such personal information. Cox hasn't handed over the names and addresses of the objectors so far, and that's got BMG lawyers steaming mad.

The "top infringers" list is a tiny fraction of the 150,000 Cox-subscribing IP addresses the plaintiffs say were caught downloading by Rightscorp's software. The list includes 250 current Cox subscribers and 250 "historical" subscribers who were nabbed by Rightscorp's software during the six months before the lawsuit was filed in November 2014.

"Copyright Holders have a right—that supersedes any privacy concerns—to know the names and contact information for those direct infringers," BMG's lawyers wrote in a motion filed last month.

The plaintiffs say getting the infringers' names will lead them to valuable, and relevant, evidence. For one thing, they intend to find out what communication, if any, took place between Cox and these "direct infringers."

Cox's lawyers countered that they were barred by the Cable Privacy Act from producing any of their subscribers' personal information. The proper procedure, they argued, is for a copyright holder to sue a subscriber directly and then send Cox a subpoena to get his or her details.

"This lawsuit is a bid both to punish Cox for refusing to participate in Rightscorp’s scheme and to gain leverage over Cox’s customers for the shakedown business model that Plaintiffs and Rightscorp employ," Cox's lawyers wrote.

US Magistrate Judge John Anderson sided with BMG, telling Cox to hand over information for subscribers unless they filed objections with the court.

Letters of objection

For the 250 "historical subscribers," Cox said they were able to identify only 139 of them. Of those, 17 contacted Cox to object and 122 had their information given to BMG lawyers.

Of the 250 current IP addresses, one was a "currently unassigned" number not associated with anyone, and one was "inadvertently missed" in the first round of contacts. Of the remaining 248, 32 objected.

Dozens of subscribers have had their letters (PDF), redacted of personal details, become public record in the court docket. Many subscribers used the opportunity to proclaim their innocence.

"I am a 86-year-old widow living in Sun City AZ," wrote one accused infringer. "I only use my computer for Facebook, Skype, and Gmail. I have mild Alzheimer's/dementia and feel this was a scam. I object to the production of my subscriber information due to the fact that I only use my computer to see my family on Facebook and Skype my grandchildren. I also manage my bank products thru the Internet. Please consider my request."

"I have Wi-Fi Internet and have had the network set to public not knowing that it needed to be secured," wrote another elderly subscriber. "Apparently everyone in my neighborhood has had access to my network. My children have assisted me with this situation and have secured my IP address. I would like to file a motion to quash and I object to the production of my subscriber information being released."

"I'm currently serving in the United States Navy," wrote a third objector. "I didn't have Cox service at that time frame due to me being on military deployment with the USS Carl Vinson... I have attached supporting documents."

At least three subscribers said they didn't have the IP address on the date ranges in question.

A mother of two mailed the judge a letter from Tulsa, Oklahoma, writing:

I understand that it is advisable to have a lawyer issue the objection on my behalf, but please understand that my husband and I are college students with two children to support on food service wages and simply can't afford to hire an attorney to do this for us.

My husband and I made the enormous mistake of having basically the easiest password someone can have on our Wi-Fi. We calculated the risk of this to be slim to none and realize we have made a terrible mistake. Your Honor, as I'm sure you know it is likely the intention of BMG to either bully us into a settlement or file a lawsuit against us. This would be an unbelievable blow to our family... The main reason we use our Wi-Fi is because of how it is necessary to complete our school assignments and we do not use it for any kind of illegal activities.

It is on no other grounds than our complete innocence that I issue this objection... We have since secured our Wi-Fi and will continue to periodically change the password... This has been an incredibly stressful time for us since learning about it and it is a very big comfort to know that it is just possible that you might consider our plea to you.

For their part, BMG and Rightscorp have produced a vast quantity of information—over 23 million documents—but Cox lawyers say it's not the right stuff. Cox demands a more complete version of Rightscorp's source code as well as detailed financial information about the revenue from the relevant songs, a few hundred of which were listed by BMG.

They also want the music publishers to provide all documents connected to Rightscorp. They're not certain what documents are missing from the Rightscorp production, but a June 18 call made it clear they don't have it all. "At a minimum those documents apparently include Rightscorp communications... in relation to other ISPs," wrote Cox lawyers.