Major Labels Claim Cox’s Appeal for Billion-Dollar Copyright Case “Divorced from Both Record and Reality”
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By Chris Cooke | Posted on Tuesday, August 3, 2021
Earlier this year, US internet service provider Cox Communications claimed the “music industry was waging war on the internet” as it formally appealed a billion dollar judgment filed against it in a legal battle with the major record companies.
But “the story that Cox tells in his [appeal] – “a besieged Internet service provider, doing its best to fight against infringements of its system, targeted by copyright holders who wage war on the Internet” – is cut off from both the balance sheet and the reality, ”say the majors in their response.
It was originally BMG that successfully sued Cox, accusing the ISP of having a deliberately low-quality system to deal with fakes and repeat counterfeiters on its network. This, the music company argued, meant that Cox could not rely on the safe harbor of copyright to avoid liability for the infringement of its users.
The majors sued over the BMG case and managed to make the same arguments in front of a jury, which led to the internet company being ordered to pay music companies $ 1 billion in damages and interests.
In his filing with the Fourth Circuit Court of Appeals in May, Cox traced the history of the music industry’s battle against online piracy, claiming that – when the litigation was successful against apps and File sharing platforms failed to stop file sharing – “the music industry has launched an aggressive new strategy: to attack the Internet itself, suing Internet service providers – cable companies and telephone, such as the defendant Cox Communications, which provide the Internet ”.
He then presented some common arguments as to why an ISP should not be held liable for the copyright infringement of its users. Bypassing internal emails seen in the BMG case that suggested Cox was lip service to his legal obligation to deal with repeat offenders – ignoring his own policies to avoid disconnecting customers – the ISP’s call then focused on questioning the credibility of the takedown notices submitted by music companies, which she had already done extensively both in the BMG case and in the first round of that case, without success.
Although this time around, it was in part to bolster the argument that – even though Cox’s allegedly poor systems for dealing with repeat counterfeiters meant the ISP could not rely on the safe harbor copyright – labels had not, in fact, fully proven that its users had even infringed the copyrights of music companies. And if you cannot prove the direct infringement of the users, you can prove the contributory infringement of the Internet services that these users use.
“The loss of safe harbor protection does not establish… that an ISP is responsible for the breach of its subscribers,” Cox said in his appeal. The lower court jury was wrong to ignore the issues it raised regarding copyright notices submitted by the labels and their anti-piracy agency, the Cox appeal said. And as a result of that mistake, the ISP now faces a bill for damages that is “entirely detached from both the harm it caused and Cox’s guilt.”
But Cox should just shut up and pay, say the majors in their response to the appeal, filed in court late last month. In their legal brief, they argue that this case is actually quite clear and therefore the ISP’s liability for breach is not in dispute. And as for the new arguments presented in the appeal, they twist the law and should have been raised before if Cox thought they were important enough, the majors add.
Noting that the BMG case was also brought before the Court of Appeal of the Fourth Circuit, the majors begin: with the Digital Millennium Copyright Act for Internet service providers accused of secondary liability for infringement ”.
Meanwhile, “the district court found without reasonable dispute that Cox knew specific subscribers were using his system to repeatedly infringe the plaintiffs’ work. The jury heard ample evidence that Cox created a safe haven for repeat offenders, forgiving offense after offense after offense and celebrating his contempt for copyright in emails like “F the dmca !!!” “”.
“The jury heard ample evidence that Cox profited directly from the breach of his system,” the new legal case continues. “Rather than suspending or terminating the accounts of serial violators, as he had the right and ability to do, Cox instead retained them as subscribers and collected hundreds of millions of dollars in subscription fees from of them. The jury’s verdict was supported by a huge pile of evidence – most of it from Cox himself ”.
Elsewhere, the majors are dealing with Cox’s new arguments and continuing criticism of the music industry’s copyright notices. They write: “Unable to escape this tribunal’s earlier ruling on the standard of knowledge, Cox now contends that evidence of ‘past acts’ of infringement does not’ establish that Cox knew that each of the 58,000 subscribers accused was “virtually certain” to violate again ‘”.
However, that is not true, argue the majors, believing that the judgments in the BMG case support them, although Cox said otherwise in his appeal.
“The standard of prior knowledge proposed by Cox,” they add, “would effectively isolate ISPs outside the DMCA Safe Harbor from liability for breach even by ‘habitual abusers’, even when ISPs are well aware that an “Client will probably fail again” to comply with copyright ”. It would be a bad law and, insist the majors, “[the] BMG [judgement] does not support this position ”.
Diving deeper into complaints about copyright notices, the majors continue: “Cox claims that the accuracy of the notices of infringement was ‘hotly contested’, so it was unreasonable for the district court of conclude that the notices adequately informed Cox of the violation of its subscribers. It’s wrong. No factually disputed element of the opinions contributed to the decision of the district court… ”.
“For example,” they add, “Cox asked where a subscriber caught illegally sharing a file originally got that file. But this evidence was not relevant to the knowledge element of infringement by supply of means; a subscriber who illegally distributes copyrighted content is infringing regardless of the source of the content ”.
With all this in mind, conclude the majors, “the judgment of the district court should be upheld.” And so the case continues.