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Labels hit out at Cox after last minute cancellation of settlement talks

By | Published on Wednesday 14 August 2019

The major record companies have accused US internet service provider Cox Communications of “a consistent pattern of obstruction, delay and gamesmanship” in the ongoing legal battle over the net firm’s failure to deal with its copyright infringing customers. The labels have specifically hit out at Cox after it called off a planned settlement conference at the very last minute last week.

Cox is one of the ISPs that the American music industry has argued should be held liable for the copyright infringement of its customers.

Internet companies always claim to be protected from such liability by the pesky copyright safe harbour. But, the labels argue, net firms like Cox have failed to put in place systems for dealing with infringing content and repeat infringers on their networks, as the law requires of safe harbour dwelling companies. Or, actually, they put those systems in place, but then deliberately don’t employ them, to avoid having to shout at or disconnect infringing customers.

Cox, of course, was the defendant in the big test case on all this, in which music firm BMG argued that, by failing to properly implement takedown and repeat infringer policies, the ISP shouldn’t have safe harbour protection. And in that case the internet company basically lost, resulting in legal action by the record industry at large against ISPs Grande, Charter and Cox.

The latter is due to reach court later this year, but in June both sides agreed to participate in a settlement conference last week. Those discussions were due to take place before the judge in the court where the lawsuit has been filed, which is in Virginia. But then, two days before that conference was meant to start, Cox called it off, saying that the two side’s positions were so far removed that nothing productive could come out any discussions.

The labels were not impressed by this last minute cancellation, arguing that nothing had changed regarding each side’s position in the six weeks since the settlement conference had been agreed upon. And in those weeks the record companies had spent a lot of time prepping for the settlement discussions, time that could have been spent working on other aspects of the case. The labels had also booked all their travel to Virginia.

In a new moan-filled submission to the court, the labels say that Cox’s excuse for the last minute cancellation is “specious”. They write: “If Cox held the view that the parties are too far apart in terms of valuing the case, it should not have represented to the court and plaintiffs that it was interested in a settlement conference; it should not have scheduled the settlement conference; and if it was going to cancel the settlement conference, it should have done so weeks earlier”.

Listing various other moans about the way Cox has behaved as this case has gone through the motions, the labels then say that the net firm has “demonstrated a consistent pattern of obstruction, delay and gamesmanship” And, with that in mind, “plaintiffs thus have concern that Cox’s approach to the settlement conference was just a ruse to distract plaintiffs at a critical time”.

They add: “The instances of Cox’s strategic gamesmanship go on and on and it is no stretch to believe that Cox’s unilateral, eleventh-hour cancelation of the long-scheduled settlement conference is simply more of the same”. Plus, they say, “regardless of the motive, there can be no dispute that plaintiffs’ suffered unnecessary distractions and costs as a result of Cox’s conduct”.

As for the purpose of the labels’ formal moan, the legal filing concludes: “The court has broad discretion to enter sanctions pursuant to its inherent authority, including without the formality of a motion. This situation clearly calls for it. Plaintiffs are prepared to file a formal motion should the court deem it necessary, though that would only further distract plaintiffs at this critical juncture and increase the amount that Cox should have to compensate plaintiffs”.

And so the legal battle rumbles on.