Mar 20, 2024 2 min read

Fourth Circuit court declines to rehear billion dollar Cox copyright case

The dispute between Cox and the major record companies will not be considered for a second time by the Fourth Circuit Appeals court, meaning its previous ruling stands: The ISP is liable for copyright infringement but the billion dollars in damages it was told to pay the labels should be reviewed

Fourth Circuit court declines to rehear billion dollar Cox copyright case

The Fourth Circuit Appeals Court in the US has declined to rehear the big copyright legal battle between internet service provider Cox Communications and the major record companies. This means a lower court now needs to review the billion dollar damages previously awarded to the music companies.

After using 347 words to list all the major label subsidiaries that are technically plaintiffs in this case, plus the organisations that submitted amicus briefs in support of either Cox or the labels, the Fourth Circuit appeal judges stated their actual judgement in just 36 words.

They declared: "The court denies the petition for rehearing en banc, and the petition for rehearing and rehearing en banc. No judge requested a poll under Fed R App P 35 on the petition for rehearing en banc". 

Given the disparity between the word count for the list of parties and the actual judgement, you'd think they could have written 'federal rule of appellate procedure 35' out in full. 

Rule 35 says that, where a party in a case requests a rehearing en banc - meaning the case would be heard by a larger panel of judges - that request will be honoured if supported by "a majority of the circuit judges who are in regular active service". 

However, "a vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote". And in this case, nobody did. 

Last month the Fourth Circuit overturned the billion dollar judgement against Cox from 2019. The case centred on whether or not the ISP should be held liable for its customers' infringement of the majors' copyrights, on the basis that it didn't do enough to deal with repeat infringers that had been identified by the music companies. 

In the 2019 judgement, it was concluded that Cox was liable for both contributory infringement - having contributed to its users' illegal distribution of music - and vicarious infringement - on the basis it profited from that illegal distribution. The appeal judges (in a judgement that ran to 7800 words, in case you wondered) confirmed the liability for contributory infringement, but said the case for vicarious infringement had not been proven. 

That means the damages bill needs to be recalculated. Although the major record companies presented an argument for why - despite the altered judgement - the billion dollar damages should stand. To that end, they wanted the Fourth Circuit to review the case, possibly en banc, in the hope the appeal judges would agree. 

Cox, meanwhile, wanted an en banc hearing to completely overturn the copyright infringement judgement against it. The company argued that the precedent set in this case means that - if it receives more than one copyright complaint in relation to an internet connection - it is now obliged to "throw 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". 

The ISP's arguments were backed up by an amicus brief supported by organisations like the Internet Association and Electronic Frontier Foundation, while the majors had the National Music Publishers Association and Songwriters Of North America support their position in another amicus brief submission. But none of that persuaded even one Fourth Circuit judge to give the case more consideration. 

So now the matter returns to the lower court, unless either side is in the mood for some Supreme Court funtimes.

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