In asking the US District Court of the Eastern District of Virginia to dismiss a $1 billion judgment against it, Cox Communications claimed that the decision was based on evidence that was produced for a separate case against Charter Communications.
A set of music files on a hard drive were said to have been pirated during 2012 to 2014, and verified to be infringing instances through fingerprinting technology by Audible Magic. Copyright infringement notices for these files had been sent by MarkMonitor.
However, according to a memorandum by Cox in support of its motion for relief from the judgment dated December 27, 2021:
“Cox objected to Plaintiffs’ evidence of direct infringement on the basis that it was created after the fact and was therefore unreliable and inadmissible—but Plaintiffs repeatedly denied that was the case, and they did so falsely. As is now clear, evidence produced over Plaintiffs’ objection in their similar litigation against another ISP, Charter Communications, Inc., confirms that the unprecedented judgment in this case was based on evidence that was created years after the alleged infringement occurred.”
Cox contends that the documentation produced by MarkMonitor for the contents of the hard drive, while claimed to be produced before copyright notices were sent in 2014, was in fact not produced until 2016.
Cox further contends that the MarkMonitor documentation was commissioned by the plaintiffs “as part of a project conceived by Plaintiffs’ counsel in 2016 in anticipation of bringing this very lawsuit – a project that Plaintiffs never disclosed to Cox, the Court, or the jury, and in fact affirmatively concealed,” and that the music files on the hard drive were also downloaded from P2P networks in 2016.
Read the Cox memorandum supporting relief from judgment
Why it matters
Beyond the obvious, that if the evidence proves to have been falsified and two major Internet access providers have been sued for billions under false pretenses, that the judgment can turn from the ISPs back to the original accusers; a loss by Sony et al can also inflict irreparable reputational damage on MarkMonitor.