On Tuesday, Judge Liam O’Grady declined Cox Communications, Inc. and Cox Com, LLC’s (collectively, Cox) invitation to reassess a ten-figure verdict entered against it for infringing on the plaintiffs’ copyrighted works. The court so ordered after determining that Cox’s failure to present evidence at trial as to which works were derivative or duplicative of others, and thereby excluded from the damages figure, doomed its after-the-fact motion.
The case originated when members of the music industry, including record companies and publishers, sought to hold Cox, an Internet service provider, accountable for copyright infringement committed by its subscribers from February 2013 to November 2014. Cox’s contributory and vicarious infringement, plaintiffs Sony Music Entertainment, Arista Music, and others claimed, occurred on peer-to-peer networks, frequently used for file-sharing. In December 2019, the jury found Cox liable for its subscribers’ infringement of 10,017 copyrighted works during the claim period, which at a statutory rate of just under $100,000 per work resulted in the $1 billion damages figure.
The court partly granted Cox’s Federal Rule of Civil Procedure 50 renewed motion for judgment as a matter of law last year, permitting Cox to challenge the damages award based on its argument that some of the works were “derivative of others, and thus ineligible for a separate statutory damage award.” In this week’s order, the court reasoned that the job of determining which works were duplicative was not “ministerial.”
Instead, it implicated “judgment calls” requiring a fact finder to afford different weight to factors including artist and album name, ownership information, and publication date in making the decision. Because Cox missed its opportunity to present evidence of its own calculation at trial, the court upheld the jury’s determination and verdict.
Cox is represented by Winston & Strawn LLP, and the plaintiffs by Oppenheim + Zebrak, LLP.
