On Tuesday (January 12), a federal judge in Virginia upheld a $1 billion copyright infringement award won by Sony, Universal and Warner in December 2019 against US-based internet service provider Cox Communications.
The decision marks the second time in six months that the verdict was upheld in federal court.
The case was originally launched in 2018. Cox was accused by the majors at the time of having “knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers”.
In December 2019, a jury decided that the firm was liable for the infringement of over 10,000 music copyrights by its users and it was ordered to pay the labels over $99,000 for each of the 10,017 alleged works that were infringed – the equivalent of $1 billion in collective damages.
Cox challenged the ruling in January 2020, but the following June, US District Judge Liam O’Grady rejected the firm’s claim within that motion that the damages awarded for each infringed copyright were “excessive”.
Judge O’Grady conceded however that the number of works used to calculate the total award (10,017) was “premature”, with Cox granted 60 days to submit an updated list of works.
According to Tuesday’s order filed by Judge O’Grady, which you can read in full here, Cox submitted “three relevant schedules in its brief in support of a reduction in the number of works”.
O’Grady wrote that “each is indeed complex” and that “the many steps Cox performed in its analysis required examining the names of the artist, the name of the album, ownership information and publication date”.
Added O’Grady: “Performing this analysis required Cox to make judgement calls on whether works were derivative by giving the above factors different weight.”
These questions, according to O’Grady “must be answered by jury”, adding that the court was “wrong that this recalculation could be made on the trial record by the court performing a ministerial act”.
The order goes on to explain that because Cox failed “to present evidence to the jury that it had infringed on only 7,579 works,” and the result was that the jury determined that Cox had infringed on 10,017 works.
“For the foregoing reasons the court finds that the jury’s determination of the number of works infringed stands. Cox’s failure to present evidence of its own calculation to the jury at trial is determinative.”
US District Judge Liam O’Grady
Continues the order: “Cox’s brief in footnote 10 makes clear that even if the jury had been asked to make this factual determination by requiring them to comb through the thousands of entries on the PX-1 and PX-2 lists, they would have been unable to determine which of them were derivative of each other.
“Clearly, the number of derivative works in play in this case was a question for the jury. The jury answered that question with the information available and Cox did not provide the information to the jury that it has provided to the court in its post-trial brief.
“For the foregoing reasons the court finds that the jury’s determination of the number of works infringed stands. Cox’s failure to present evidence of its own calculation to the jury at trial is determinative.”Music Business Worldwide