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Judge upholds much of the record industry’s billion dollar win in Cox case, but orders recalculation of damages

By | Published on Wednesday 3 June 2020

Cox Communications

A court in Virginia has largely upheld the record industry’s billion dollar legal win in its copyright infringement battle against US internet service provider Cox Communications, although those billion dollar damages could as yet be recalculated based on a recount of how many copyrights were actually infringed.

Cox is one of a number of American ISPs sued for copyright infringement by the record industry on the basis they did not fulfil their obligations under law to get safe harbour protection from liability for the infringing activities of their customers. BMG set the precedent in this domain when it sued Cox. On the back of that the majors sued Cox, Grande, Charter and RCN, with most of those cases ongoing.

The majors won their lawsuit against Cox last year securing the mega-damages of $1 billion, which equated to statutory damages of $99,830.29 for each of the 10,017 songs and recordings infringed by the ISP’s customers that were specifically listed in the major record companies’ lawsuit.

Cox unsurprisingly appealed the judgement. In a February legal filing it raised various grievances with the judgement and how the jury reached it, while also calling the billion dollar damages bill “shockingly excessive and unlawfully punitive” and “wholly divorced from any possible injury to plaintiffs, any benefit to Cox, or any conceivable deterrent purpose”.

The ISP called on the judge who oversaw last year’s case, Liam O’Grady, to amend – as a matter of law – the jury’s conclusion, or to slash the damages bills through a process called ‘remittitur’, or to order a retrial.

In a ruling yesterday, O’Grady rejected both the motions for remittitur and for a retrial. He also rejected many of the arguments Cox had presented as to why the jury ruling should be amended, although he did agree that some new maths should be done regarding damages.

That mainly relates to the question as to whether the song and recording copyrights in each infringed track should be counted separately for the purposes of statutory damages, where the plaintiffs are awarded a set sum per infringement.

And also whether, when an infringed work is actually an adaptation and therefore a derivation of an earlier work, are both the adaptation and the original separately infringed?

Plaintiffs have 60 days to justify to the court how many separate infringements they think they should receive damages for, taking into account O’Grady’s discussions on how such calculations should be done in yesterday’s ruling.

While the labels do that, Cox will no doubt start pursuing other routes of appeal.