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Music-industry lawyers plan to ask potential jurors in a piracy case whether they read Ars Technica.

“Have you ever read or visited Ars Technica or TorrentFreak?” is one of 40 voir dire questions that plaintiffs propose to ask prospective jurors in their case against Grande Communications, an Internet service provider accused of aiding its customers’ piracy, according to a court filing on Friday. TorrentFreak pointed out the juror question in an article yesterday.

Grande was sued in April 2017 by the three major labels, namely Universal Music Group, Sony Music Entertainment, and Warner Bros. Records. The case is in US District Court for the Western District of Texas.

While the music-industry court filing doesn’t explicitly say that reading Ars is a good qualification for being a juror, we can only assume that record-label attorneys want the technology-centric case to be decided by savvy, well-informed technology users and are thus trying to pack the jury with as many Ars readers as possible.

Record-label attorneys also want to ask potential jurors if they “know what a peer-to-peer network is,” have “ever downloaded content from any BitTorrent website” such as The Pirate Bay and KickassTorrents, obtained music or video from “any stream-ripping service,” been “accused of infringing a copyright,” or “ever been a member, contributor or supporter of the Electronic Frontier Foundation.”

Here are some other questions for jurors that record labels want to ask:

  • Do you believe that all music on the Internet should be available for free?
  • Do you have any negative opinions about record labels for any reason?
  • Have you ever downloaded music from the Internet? If so, when and where did you get it from?
  • Have you ever had your Internet service suspended or terminated for any reason?
  • Do you think it is at all unfair to hold a cable company or provider of Internet service liable for infringement by its subscribers when the company has been told about the infringement on its network, but fails to stop it?

Jury selection is scheduled for February 24, with the trial set to begin one day later.

The case

Another record-label court filing previews how the industry will present its case against Grande to jurors. Industry lawyers claim that Grande is liable for its customers’ piracy because the ISP no longer cuts off service to Internet users who have been identified as repeat copyright infringers:

Plaintiffs submit that the evidence at trial will show Grande knew its Internet subscribers were illegally sharing music online since the early 2000s, and for years addressed the problem by suspending or terminating these infringers. However, beginning in 2010, in an effort to increase profits, Grande eliminated its termination policy and chose instead to allow its subscribers to infringe copyrights freely with no consequences. As a result, Grande subsequently received more than one million notices identifying specific instances of copyright infringement by its subscribers. Yet despite knowing of, or willfully blinding itself to, specifically identified repeat infringements by its customers, Grande continued to provide those customers the Internet service essential to their unlawful conduct. In fact, it is undisputed that Grande did not terminate a single infringing customer from October 2010 until June 2017—after this lawsuit was filed. Grande’s knowing contribution to its users’ infringements allowed it to dramatically increase profits and earn $400 million on the sale of the company in February 2017. Grande’s conduct also caused significant damage to the Plaintiffs and their recording artists.

Grande was sold to private-equity firm TPG Capital for $650 million in February 2017.

Grande’s defense

Grande also previewed its case in a filing Friday, writing that it is “merely an Internet service provider and never induced or encouraged anyone to infringe the plaintiffs’ copyrights.”

Further Reading

“You could be liable for $150k in penalties—settle instead for $20 per song”

Grande further argues that Rightscorp, the copyright-enforcement company used by the music labels to detect copyright infringement, “cannot accurately or reliably identify infringement, and that Rightscorp destroyed or otherwise failed to preserve the evidence of its alleged detections.”

Grande also said that Rightscorp’s copyright-infringement notices to the ISP “lacked any supporting or verifiable evidence.”

Should ISPs monitor customer downloads?

Grande filed a list of its own questions that it wants to ask potential jurors.

“How many of you believe that ISPs should be monitoring what you do online, including what materials you download?” is one of the questions.

There’s some overlap between the sides’ proposed questions. Like the record labels, Grande wants to know if potential jurors have ever been accused of copyright infringement and whether they understand what BitTorrent is.

Grande also wants to ask potential jurors if they own copyrights, if they have ever accused someone else of infringing their copyrights, whether they believe downloading music without paying for it “is a very serious problem,” and whether they are musicians or are close to musicians.

Here are a few other broadband-centric questions that Grande lawyers want to ask potential jurors:

  • Have you had a billing or service problem with an Internet service provider that was not resolved to your satisfaction?
  • In general, do you feel that the price of home Internet service is too expensive, too cheap, or about right?
  • In general, do you feel that the amount of competition among Internet service providers is too little, too much, or about right?
  • Does anyone think that Congress should pass a law requiring Internet service providers to monitor what their customers do online?
  • Does anyone here believe that it is the ISP’s responsibility to monitor and police online copyright infringement?

Grande has a problem

Grande has at least one thing working against it as this case heads to trial—the ISP cannot use a “safe harbor” defense under the Digital Millennium Copyright Act. In March 2019, US District Judge David Ezra issued a ruling granting a music-industry motion for partial summary judgment, finding that Grande cannot use a safe-harbor defense because starting in 2010, the ISP did not reasonably implement a policy for terminating repeat infringers.

Further Reading

Cox Communications hit with $1 billion verdict over music piracy

Cox, another ISP, lost a $1 billion verdict in a similar case. Cox was also unable to use a safe-harbor defense, as it would only consider terminating a customer’s service “after a thirteenth [copyright-infringement] notice,” Ezra noted in his ruling in the Grande case.

“Unlike Cox, Grande did not even have a policy or procedures in the first place for them to laxly enforce or frequently circumvent,” the judge wrote. “Grande thus did even less than Cox to ‘reasonably implement’ the kind of policy required for the protections of DMCA’s safe harbor.”

Cox is trying to get the $1-billion judgment overturned or lowered. Charter Communications is facing a similar lawsuit.