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Cox Communications reasserts appeal arguments in billion dollar copyright case

By | Published on Friday 20 March 2020

Cox Communications

Cox Communications has submitted another filing as part of its efforts to appeal the billion dollar copyright judgement against it. The American internet service provider rubbishes the most recent arguments presented by the major record companies, again insisting that the judge overseeing the case must slash the damages bill and/or order a retrial.

Cox, of course, is one of a number of American ISPs sued by the record industry. It was BMG’s successful lawsuit against Cox that set things in motion, with the majors then also winning their legal battle with that particular ISP. Lawsuits against other net firms like Grande, Charter and RCN are ongoing.

These cases present the argument that the ISPs have employed deliberately shoddy systems for dealing with infringers and infringement on their networks. To that end they should not be able to rely on the copyright safe harbour, meaning they can be held liable for the copyright infringement of their users. And in the case of the lawsuit pursued by the majors against Cox, that liability is to the tune of a neat billion dollars.

Appealing the billion dollar ruling in February, Cox raised various grievances with the judgement and how the jury reached it. The billion dollar damages bill, meanwhile, it said, was “shockingly excessive and unlawfully punitive” and “wholly divorced from any possible injury to plaintiffs, any benefit to Cox, or any conceivable deterrent purpose”.

Cox also compared the billion dollar damages bill to the damages awarded in other copyright cases, including the BMG v Cox dispute. They wrote: “The award of $1 billion appears to be the largest award of statutory copyright damages in history”.

And, “this is not by a matter of degree. It is the largest such award by a factor of eight. It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this district by a factor of more than 30”.

Earlier this month, responding to the ISP’s appeal, the majors defended the high level damages. They said that this case involved an unusually high number of infringed works and a much more cash rich defendant. Cox was also an “unapologetic” offender.

As for the arguments presented in Cox’s appeal, they “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”.

In its response to the labels’ response, Cox stands its ground. The labels “do not dispute the historic size of the $1 billion award”, says the ISP, and their “only response is to suggest that comparing jury verdicts is inappropriate”.

But, Cox adds, “the overwhelming weight of authority holds that, as this court has explained, ‘prior awards are an aid and may be reviewed to determine whether an award is excessive’ or ‘out of line compared to other awards in similar cases'”. Citing other legal precedent, the new filing goes on: “‘When a damage award is not rationally proportionate to awards assessed in similar cases for similar injuries, the award is excessive’ and must be remitted”.

And if nothing else, Cox argues, a comparison with the BMG v Cox case is entirely appropriate. “In the most closely analogous case, the BMG jury awarded $25 million, or $17,895 per work. Plaintiffs make no attempt to justify the 458% increase in per-work damages – never mind the 3900% increase in aggregate damages – from BMG to this case. Indeed, plaintiffs are noticeably quiet about BMG, which they cite only once. It is a striking omission, given that the conduct accused of infringement in the two cases was substantially similar”.

We now await to see how the judge overseeing the case rules on each side’s respective arguments.