Cox Can’t Escape $1 Billion Copyright Verdict, Can Reduce Award

Cox Communications Inc. can’t overturn a $1 billion verdict against it for failing to prevent music piracy on its network, but it can get that award reduced, a Virginia federal court said.

Although the verdict was sound and the award per pirated work was proper, the court said Tuesday that it would recalculate how many songs were actually pirated.

Record companies including Sony Music Entertainment, Warner Brothers Records Inc. and Universal Music Corp. sued Cox for enabling its subscribers to copy more than 10,000 works over peer-to-peer networks like BitTorrent.

The jury found that Cox failed to address the copyright infringement and awarded the companies nearly $100,000 for each infringed work.

The court rejected Cox’s argument that there was insufficient evidence to support the verdict. The direct infringement verdict against Cox was supported because the technology used to detect the infringement was reliable, there was “overwhelming” evidence that the works were distributed over Cox’s network, and there was “strong” evidence that Cox’s users illegally reproduced the works.

There was sufficient evidence for the jury to find that Cox committed vicarious copyright infringement because it had the right and ability to supervise its subscribers’ infringement and gained a direct financial benefit from it. Cox’s failure to address specific acts of infringement was enough to support the jury’s contributory infringement finding.

The jury didn’t err in awarding nearly $100,000 per work, but the court ordered a new calculation of the total number of works because some of the copyrights at issue covered separate musical compositions and sound recordings for the same song. The court said it would recalculate to find “the adjusted number of works in suit after combining those MCs and SRs that overlap in one work.”

The court also denied Cox’s motion for a new trial, finding the verdict wasn’t against the weight of the evidence and the award wasn’t grossly excessive, among other things.

The jury also didn’t err in finding Cox’s infringement willful.

Judge Liam O’Grady wrote the opinion.

Oppenheim & Zebrak LLP represents the record companies. Winston & Strawn LLP represents Cox.

The case is Sony Music Entm’t v. Cox Commc’ns Inc., E.D. Va., No. 1:18-cv-00950, 6/2/20.