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More legal filings submitted in record industry v Cox Communications appeal

By | Published on Monday 13 September 2021

Cox Communications

Both US internet service provider Cox Communications and the record industry last week filed new papers with the Fourth Circuit appeals court in the US in the ongoing legal battle over the former’s liabilities when its customers infringe the latter’s copyrights.

Responding to and expanding on previous submissions made as part of the appeal, both filings pretty much repeat each side’s previous arguments, with Cox claiming that a lower court ruling against it will have “devastating” consequences on the wider internet, while the record labels argue that the ISP’s dramatic statements are “divorced from both the record and reality”.

This all relates to the allegation that Cox had a deliberately shoddy system for dealing with repeat copyright infringers among its customer base. As a result, it can’t rely on safe harbour protection from liability for its users’ infringement, because that protection is dependent on enforcing decent repeat infringer policies. It was originally BMG that successfully made these arguments against Cox in court. On the back of that success, the majors also sued, winning a billion dollars in damages.

It’s the billion dollar damages ruling that Cox wants the Fourth Circuit to overturn. The labels “do not deny it”, the ISP said in last week’s filing, “if the judgment is affirmed, ISPs will be required to terminate any internet connection accused of infringement just once – exiling anyone using that connection, infringer or not – on pain of crushing damages”.

Third parties “representing a host of often-divergent interests have unified here”, it added, “to warn of the devastation this rule will wreak on the public. Plaintiffs don’t dispute these consequences, because this is the legal regime they have been advocating for years. They want to replace the flexible, fault-based doctrines of secondary copyright liability with notice-and-terminate … or else”.

“That is not the law”, Cox then stated. “Plaintiffs try to justify the result here with breathless accusations that Cox was an outlier among ISPs, ‘creating a safe haven for repeat infringers’ and ‘celebrating its contempt for copyright’. Plaintiffs launch the same broadsides against each of the multiple ISPs they have sued across the country”.

“But all this rhetoric cannot obscure that the judgment is riddled with legal defects – from the district court’s rash and radical summary judgment ruling, to its illogical rule of vicarious liability, to its refusal even to resolve statutory damages issues that quadrupled the judgment. This court should reverse”.

But, the labels countered in their latest filing, “the story Cox tells in its brief – a beleaguered internet service provider, doing its best to police infringement on its system, targeted by copyright holders ‘waging war on the internet’ – is divorced from both the record and reality”.

“This court has already held that Cox acted so unreasonably in addressing its subscribers’ known repeated copyright infringement that it was ineligible for the accommodating ‘safe harbour’ provided by the Digital Millennium Copyright Act for internet service providers accused of secondary liability for infringement”, the labels added.

“The district court found it beyond reasonable dispute that Cox knew specific subscribers were using its system to repeatedly infringe plaintiffs’ works. The jury heard ample evidence that Cox created a safe haven for repeat infringers, forgiving infringement after infringement after infringement, and celebrating its contempt for copyright in emails like ‘F the DMCA!!!'”.

And talking of the DMCA, “Congress made clear in the DMCA that internet service providers are expected to terminate repeat infringers ‘in appropriate circumstances'”, the record industry’s filing continued. “During the time period at issue here, Cox terminated over 600,000 subscribers for not paying their bill. It terminated 32 for copyright infringement”.

The labels then concluded: “Plaintiffs established that Cox’s subscribers serially violated over 10,000 of plaintiffs’ copyrighted works, and the jury awarded a mid-range statutory damages award for each. This court should affirm”.

As Cox noted, the labels have also sued a number of other ISPs over the same claims, and more recently a consortium of independent movie producers have followed suit. Which means many people across the music, movie and internet industries are going to be watching how this appeal now progresses very closely.