December 20, 2019 – A jury has found Cox Communications secondarily liable to the tune of $1 billion in damages for willful copyright infringement.[1]

In July 2018, Cox was sued by a group of recording companies “that produce, manufacture, distribute, sell, and license commercial sound recordings, and music publishers that acquire, license, and otherwise exploit musical compositions, both in the United States and internationally.”[2]

The recording companies claimed Cox “knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its [broadband] subscribers[,]” because Cox “deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others’ copyrights – even once Cox became aware of particular customers engaging in specific, repeated acts of infringement.”

The recording companies’ July 2018 lawsuit was filed with the same Federal court that previously found Cox was not eligible to claim the Digital Millennium Copyright Act (DMCA) safe harbor that limits an ISP’s liability for copyright infringement that occurs on its network.[3] Indeed, the complaint explains that the court, in that related case, already determined Cox is not eligible for a DMCA safe harbor for the period of February 2012 through November 2014.[4] That case was ultimately settled before reaching a jury. So of course it’s not surprising that the recording companies filed their lawsuit.

Cox was sued for both contributory and vicarious copyright infringement. The recording companies sought statutory damages in an amount of up to $150,000 with respect to each work infringed, as well as attorney fees and costs.

There are a number of interesting aspects of this litigation. However, I’ll jump straight to the end. The jury returned the following verdict:

Plaintiffs proved by a preponderance of the evidence that Cox was contributorily liable for infringement.

Plaintiffs proved by a preponderance of the evidence that Cox was vicariously liable for infringement.

Cox vicariously and contributorily infringed 10,017 works owned by the Plaintiffs.

Based on a preponderance of the evidence, Cox’s contributory and vicarious infringement was willful.

The amount of statutory damages awarded for each work contributorily or vicariously infringed is $99,830.29.

The total amount of damages awarded to Plaintiffs in this case is $1,000,000,000.

Obviously, Cox was not happy with the verdict, and made the following  statement:

“The judgement is unwarranted, unjust and an egregious amount. Today, you can download a song for a dollar. This judgement is for nearly $100,000 per song. We plan to appeal the case and vigorously defend ourselves. We provide customers with a powerful tool that connects to a world full of content and information. Unfortunately, some customers have chosen to use that connection for wrongful activity. We don’t condone it, we educate on it and we do our best to help curb it, but we shouldn’t be held responsible for the bad actions of others.”

I’d bet Cox would find many supporters of the notion that statutory damages for copyright infringement are out of whack with real life. You can also see why Cox settled the BMG case before it went to a jury.

Content owners opened up a new front in the copyright wars when they first sued Cox a few years ago. This win, plausibly, shows that the war may be unwinnable for ISPs. One billion dollars in damages should once again send shockwaves through the ISP industry, forcing them to get organized. But what can they do? Well, for starters, ISPs can and should terminate more subscribers expected of repeat infringement. Maybe have their IT directors block access to BitTorrent and other P2P sharing applications at the network level, if that’s possible. In reality, these lawsuits are not stopping. Surely this will send Cox’s lobbyists to the Hill to push for reforming the DMCA. Right?

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[1] Sony Music Entertainment, et al. v. Cox Communications, Civil Case No. l:18-cv-950, Verdict Form, U.S. District Court For The Eastern District Of Virginia (Dec. 19, 2019).

[2] Sony Music Entertainment, et al. v. Cox Communications, Civil Case No. l:18-cv-950, Complaint And Jury Demand, U.S. District Court For The Eastern District Of Virginia (July 31, 2018).

[3] 17 U.S.C. § 512(a).

[4] BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc. and CoxCom, LLC, 149 F. Supp. 3d 634, 662 (E.D. Va. 2015), aff’d in relevant part, 881 F.3d 293 (4th Cir. 2018).