January 1, 2022 – Cox Communications has filed a motion For Relief From Judgment in the U.S. District Court for the Eastern District Of Virginia, which claims the $1 billion judgment against it for copyright infringement in Sony Music Entertainment, et al. v. Cox Communications “was based on evidence that was created years after the alleged infringement occurred.”[1]

To make a long story short, Cox claims the Sony plaintiffs lied to the court and this helped secure victory:

The bottom line is that Plaintiffs lied. They lied to Cox; they lied to the Court; and they lied to the jury. And they rode those lies to a $1 billion judgment.

In July 2018, Cox was sued by a group of recording companies who claimed Cox “knowingly contributed to, and reaped substantial profits from,” massive copyright infringement committed by thousands of its broadband subscribers. They claimed 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.” 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. The jury ultimately found Cox Communications secondarily liable to the tune of $1 billion in damages for willful copyright infringement.[2]

Cox Communications filed its recent Motion For Relief From Judgment after reviewing new evidence produced in a similar DMCA copyright lawsuit against Charter Communications.[3] Among other things, Cox is requesting that the District Court order the production of the materials produced in the Charter case, “which are likely to undermine the reliability of” the Sony plaintiffs’ direct infringement evidence, further demonstrating the prejudice to Cox caused by the Sony plaintiffs’ misconduct.”[4]

To build evidence for the basis of its case in Sony v. Cox, Sony used MarkMonitor to surveil peer-to-peer filesharing networks to identify potentially infringing audio files, download those files, and then generate and send DMCA infringement notices to Cox broadband subscribers that allegedly copied the files. During the trial, Sony presented this data – spreadsheets and a hard drive – as evidence of copyright infringement by Cox subscribers.

At trial, Cox challenged “the authenticity, foundation, and provenance of this evidence,” but the Sony plaintiffs “successfully persuaded the Court and the jury that the exhibits were what they were represented to be: an integrated and contemporaneous whole created during or before the 2013–2014 Claims Period.” Now, Cox claims this key piece of evidence was false:

Evidence produced in Charter has revealed that the audio files on the Hard Drive were downloaded by MarkMonitor and subjected to Audible Magic verification years after the notices were sent. Thus, the files on the Hard Drive are not the same files used to generate the infringement notices, and the Audible Magic verifications documented in the MarkMonitor Spreadsheet were not of the files on the Hard Drive. In other words, Plaintiffs’ evidence constituted two mismatched halves created years apart from one another – not the integrated and contemporaneous whole they represented it to be.[5]

Here is how Cox describes the situation:

The bottom line is that Plaintiffs lied. They lied to Cox; they lied to the Court; and they lied to the jury. And they rode those lies to a $1 billion judgment. Cox seeks relief from that judgment under Rule 60(b)(3). Accordingly, Cox respectfully requests that the Court make an indicative ruling under Rule 62.1 that it is inclined to grant the motion or, at a minimum, that the motion raises a substantial issue warranting further consideration on remand.[6]

Cox is asking the District Court to enter an indicative ruling under Federal Rule of Civil Procedure 62.1 stating that it is inclined to grant Cox’s motion for relief from the judgment, or – at a minimum – that Cox’s motion raises a substantial issue that warrants further consideration by the Court. Upon receipt of such a ruling, Cox will move in the Court of Appeals for the Fourth Circuit for a limited remand to the District Court to resolve Cox’s motion. 

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[1] Sony Music Entertainment, et al. v. Cox Communications, Civil Case No. l:18-cv-950 (LO/JFA), Cox’s Memorandum Of Law In Support Of Its Motion For Relief From The Judgment Under Rule 60(B)(3) And Request For Indicative Ruling Under Rule 62.1, Public Version, U.S. District Court For The Eastern District Of Virginia (Dec. 27, 2021) (Motion Memorandum).

[2] 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).

[3] Warner Records, Inc. et al. v. Charter Communications, Inc., Case No. 1:19-cv-00874-RBJ-MEH, U.S. District Court For The District Of Colorado.

[4] Motion Memorandum at 30. Cox moved to intervene in the Charter case to obtain the materials that it believes further substantiate the claims in this motion, but the Charter court denied the request to intervene on the basis that the materials should be sought in this case. Motion Memorandum at footnote 2.

[5] Motion Memorandum at 4.

[6] Motion Memorandum at 2.