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Majors urge court to uphold billion dollar copyright judgement against Cox

By | Published on Tuesday 3 March 2020

Cox Communications

The major labels have urged a judge in Virginia to knock back efforts by internet service provider Cox Communications to have the billion dollar copyright judgement against it amended, reduced or overturned for a retrial.

The major music companies sued Cox after BMG successfully argued in a previous case that the ISP had deliberately shoddy systems for dealing with infringement and infringers on its networks. That meant, BMG said, that Cox shouldn’t enjoy protection under the copyright safe harbour, which in turn means that the net firm can be held liable for the infringement of its customers.

Having presented pretty much the same arguments, the majors were also successful and – last December – a jury awarded the music companies statutory damages of $99,830.29 for each of the 10,017 copyright works listed in the lawsuit, which comes to a billion dollars.

Unsurprisingly, Cox is trying to have that ruling amended or reheard in court for a second time. In a legal filing in late January it raised various grievances with the judgement and the way in which it was reached, while dubbing the billion dollar damages bill “shockingly excessive and unlawfully punitive”.

It also compared the billion dollar damages to past copyright cases, arguing that it was much, much bigger than anything that had gone before. “It is by any measure a shocking verdict”, it stated, “wholly divorced from any possible injury to plaintiffs, any benefit to Cox, or any conceivable deterrent purpose”.

But not so, say the majors in their response to Cox’s appeal papers, filed last week. The damages are so high because of the high quantity of copyrights infringed. Cox is also a much richer defendant than in most copyright cases. And it’s an “unapologetic” offender that participated in copyright infringement on “a large scale over a number of years”.

Elsewhere in their legal filing, the majors write: “For years, Cox knowingly facilitated piracy of plaintiffs’ copyrighted works on a massive scale. Cox’s conduct was not that of a single, rogue employee. It was endemic to the culture of a company that systematically helped infringers, openly mocked the copyright laws, and lied to copyright owners about its allegedly ‘gold standard’ policies. Cox did this to maximise its billions of dollars of profits – with utter disregard for the law and copyright owners”.

As for the ISP’s bid to reduce its damages bill or force a new trial, the majors go on: “Cox does not like the result. But its [new] arguments ignore mountains of evidence the jury considered. Instead, Cox relies on hyperbole, facts and verdicts in unrelated cases, and its selective review and self-serving interpretation of the evidence”.

“This is plainly insufficient”, they then argue, “to succeed on its motion Cox must confront the worst evidence against it, viewed in the light most favourable to plaintiffs, and justify a reduction or new trial based on that. Cox has failed in this regard; indeed, it has failed even to address much of the evidence. But the evidence was bountiful and damning and more than justified the within-range statutory award”.

It remains to be seen how the judge now responds.