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Cox Communications wants judge not jury to rule on its big copyright dispute with the record labels

By | Published on Thursday 19 December 2019

Cox Communications

The long running legal battle between the US record industry and American internet service provider Cox Communications finally reached its proper court hearing earlier this month, with both sides presenting their respective arguments before a jury. With that done, Cox has now asked that the judge, rather than the jury, rule on some key issues.

The record companies want to hold Cox liable for its users’ copyright infringement. Cox, like any tech company, would usually claim protection under the copyright safe harbour, which says that internet intermediaries cannot be held liable for their users’ infringing activities.

However, in order to qualify for safe harbour protection an internet firm must have systems in place to remove infringing content and deal with repeat infringers. In an earlier lawsuit, BMG successfully argued that Cox had deliberately shoddy systems for dealing with repeat infringers and should therefore not enjoy safe harbour protection. The Recording Industry Association Of America has since sued Cox and two other ISPs using the same argument.

As the RIAA v Cox litigation has gone through the motions, the net firm has tried to have the case, or parts of the case, dismissed at various points based on various arguments. But that didn’t stop the whole thing getting to court this month with a jury set to decide if Cox is liable for its users’ musical infringements and, if so, what kind of damages the ISP should pay.

Cox has now submitted a new motion seeking “judgment as a matter of law” – or a JMOL – which would see the judge rather than the jury rule on key elements of the case. Including any damages that may or may not be awarded. Which is probably a sensible move – juries always tend to skew high when asked to set damages in American copyright cases.

In addition to the damages point, Cox’s new motion returns to various other arguments that repeatedly come up in cases like this one.

For example, whether or not the labels have proven any direct infringement actually occurred. If the labels can’t prove Cox’s customers were liable for direct infringement, then the ISP can’t be liable for contributory infringement. Also, whether or not Cox benefited in anyway from its customers accessing or sharing music illegally. This has been a big debate in another of the RIAA’s ISP lawsuits against Charter Communications.

The most important part of the new legal filing is Cox’s arguments as to why the judge rather than the jury should rule on all these matters, given previous attempts at securing summary judgements have failed, and a jury has now heard both sides’ arguments.

Citing some rules and legal precedent, Cox says that JMOL is appropriate if “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue”. And also where “a reasonable jury could reach only one conclusion based on the evidence or if the verdict in favour of the non-moving party would necessarily be based on speculation and conjecture”.

In the rest of its motion – as it goes through its arguments about damages, the lack of evidence of direct infringement, and other things too – Cox reckons that this case fulfils those various criteria for judgement as a matter of law. We now await to see if the judge concurs.