Internet service provider (ISP) Cox Communications’ attempt to reduce a $1 billion award of damages for copyright infringement has failed, in a win for music companies including Sony, Universal, and Warner.

The US District Court for the Eastern District of Virginia, Alexandria Division, upheld the award of damages in a decision dated Tuesday, January 12.

In 2018, members of the music industry including Sony, Universal, and Warner accused American ISP Cox of contributory copyright infringement and vicarious copyright infringement. The plaintiffs claimed that a total of 10,017 copyrights were infringed on peer-to-peer networks.

In December 2019, a jury found Cox liable for both vicarious and contributory infringement. The jury awarded the plaintiffs $99,830.28 per work, totalling $1 billion in statutory damages.

Cox called the award of damages “shockingly excessive” and, in June 2020, the court allowed Cox to challenge the amount.

The ISP had argued that some of the works were derivative of others, and so were ineligible for a separate statutory award. The court invited Cox to submit a new calculation of damages on this basis.

In response, the plaintiffs argued that Cox had forfeited its right to challenge the number of works eligible for statutory damages because it had not raised this issue during the trial.

Earlier in the proceedings, the plaintiffs had argued against the ISP’s motion for summary judgment by claiming that whether any of the sound recordings labelled PX-1 were derivative of the musical compositions in PX-2 was a question of fact, and this is something for a jury to address.

This was accepted by the court, and Cox’s motion for summary judgment was denied on the basis that issues of material fact such as this should be considered by a jury.

In that same ruling, the court signalled that it may be required to rule on a motion by Cox regarding whether it is permissible for separate awards to be made for derivative works.

Despite this, Cox did not place any testimony regarding derivative works before the court at trial.

In its decision last week, the court noted the “many steps” that Cox had taken to recalculate the damages, which the ISP claimed should be reduced by a total of $243,386.25.

For example, Cox had to examine the names of the artist and album as well as the ownership information and publication date. Cox then had to make a judgment call on whether works were derivative.

However, as these considerations are questions of fact, they should instead have been addressed at trial and considered by the jury, the court found.

It said: “Cox’s failure to present evidence to the jury that it had infringed on only 7,579 works resulted in the jury’s determination that Cox had infringed on 10,017 works.”

“Clearly, the number of derivative works in play in this case was a question for a 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.”

As a result, the court upheld the jury’s determination of the number of infringed works, finding that Cox’s failure to present evidence of its own calculations during the trial to be “determinative”.

This is not the only clash between members of the music industry and ISPs recently.

Last year, Warner Records accused ISP Charter Communications of copyright infringement in a lawsuit that claimed $1 billion in damages. Meanwhile, earlier this month, a group of record labels successfully prevailed against an ISP’s claim that music companies target subscribers with false and deceptive piracy notices.

(Source: World IP Review)