US internet service provider Cox Communications recently forced a recalculation of the damages it must pay in its copyright legal battle with the major record companies, potentially slashing the previous billion dollar damages bill. But that's not enough for Team Cox.
Returning to the Fourth Circuit Appeals Court, the ISP wants the copyright infringement ruling against it overturned entirely. And not just in a bid to get the billion dollar damages bill down to zero, oh no, it's for the benefit of human civilisation at large. Well, internet-using humans. Which I guess is most of them in the US.
Because, it argues, under the precedent set in this case, "if an ISP receives more than one accusation that some anonymous person used a specified internet connection to download infringing songs, it can avoid liability only by swiftly throwing every person in that home or business off the internet, disconnecting the guilty and innocent alike from their schools, their livelihoods, their nanny cams, their news, and everything else they do online".
"If instead the ISP continues to provide the connection", Cox's new filing with the Fourth Circuit adds, "a jury can find it engaged in 'culpable conduct' akin to aiding-and-abetting a crime". The result, it adds, is the "most draconian approach" to copyright enforcement in the country.
The record companies have also returned to the Fourth Circuit in a bid to keep their billion dollar pay day. The majors employ a legal technicality rather than hyperbole in their latest legal filing.
In the original majors v Cox court case, the ISP was found liable for contributory infringement - for facilitating its customers' downloading and distribution of unlicensed music - and vicarious infringement - for profiting from that facilitation. Based on that, the jury awarded the billion dollars in damages.
On appeal, judges in the Fourth Circuit concluded that vicarious infringement had not been proven, hence the need to review the damages. However, the majors argues that, in the original trial, the jury was told "if you find that Cox is liable for contributory infringement OR you find Cox is liable for vicarious infringement, then you should consider the amount of money to award the plaintiffs".
Not only that, the wording “contributory OR vicarious”, rather than “contributory AND vicarious”, was proposed by Cox itself. Therefore, the majors now argue, the fact that - on appeal - Cox was not held liable for vicarious infringement shouldn't impact on the damages bill.
Cox is one of a number of US ISPs to have been sued by the music industry for not doing enough to stop its customers from infringing copyright.
The argument in these cases usually goes that the ISP had a deliberately slack policy for dealing with repeat infringers among its customer base, even when they were made aware of those repeat infringers by copyright owners. As a result, the ISP cannot rely on the copyright safe harbour to avoid liability for the infringement of its users.
The big test case was pursued by BMG against Cox. On the back of BMG's success, the majors sued Cox and others. Some of the other cases have resulted in out of court settlements, some have seen the majors win in court, albeit with damages considerably lower than that billion dollars.
Cox's new filing with the Fourth Circuit basically challenges the conclusion that has been reached in all those cases regarding the liability of ISPs for contributory infringement.
It also argues that - even if Cox is liable for contributory infringement - it should not be considered wilful contributory infringement. That distinction definitely has an impact on damages, because under US law potential damages increase five-fold if the infringement is wilful.
The ISP wants the Fourth Circuit to review the entire case en banc, so that more judges would be involved. The majors want a review of the decision to recalculate the damages, possibly with the original panel of judges, or possibly en banc.