Appeals Court Rejects Rehearing Requests in Cox Communications v. Major Labels Infringement Battle

Photo Credit: Wesley Tingey

Last month, an appeals court ordered a new trial to determine the damages owed by Cox Communications over infringement, extending to roughly 10,000 musical works, committed by its subscribers. Now, the same court has rejected separate requests from Cox as well as the major labels to reconsider parts of its late-February decision.The U.S. Court of Appeals for the Fourth Circuit just recently denied the involved parties’ respective pushes to have certain elements of the decision reheard. As we previously reported, a jury in December of 2019 found Cox liable for the alleged infringement and said it should be made to cough up a whopping $1 billion.

Predictably, that didn’t sit right with the defendant, which says it currently provides internet services for approximately six million homes and businesses. In the interest of brevity, several years, twists, and turns – including disputes as to the accuracy of the underlying takedown notices, overlapping works on the list of allegedly infringed IP, and more – ultimately led to the noted late-February ruling.

Therein, the three-judge panel, contrasting the jury’s findings, indicated that Cox wasn’t actually liable for vicarious infringement – a consequential point when it comes to damages. Expanding on the latter, the judges ordered a new trial, centering solely on how much Cox should pay in damages, while also upholding the jury’s contributory infringement verdict against the ISP.

Expectedly, the major labels in their subsequent petition for rehearing and rehearing en banc – an effort to have the panel or the full court, respectively, reconsider the February decision – took aim at the cancellation of the $1 billion verdict the jury had entered in their favor.In many more words, the plaintiffs essentially argued that the verdict should stick because Cox had instructed the jury to determine global damages for any “contributory or vicarious infringement.” With the key word being “or,” the majors and their counsel said that the total should stand because, as noted, the appeals court affirmed the contributory liability.

On the other hand, Cox in its petition for rehearing en banc emphasized the perceived burden placed on ISPs by the appeals court’s decision (and a ruling in a separate infringement suit, this time from BMG). Also alleged was a conflict between the February ruling and a 2023 Supreme Court decision concerning the liability of service providers for users’ actions.

“Rehearing is also warranted to decide whether a secondary infringer can be adjudged willful,” Cox wrote, “exposing it to dramatically enhanced statutory damages, merely because it had knowledge of an internet user’s direct infringement.”

Shifting from these summaries and returning to the initially highlighted ruling, the court was evidently unmoved by both arguments. “The court denies the petition for rehearing en banc and the petition for rehearing and rehearing en banc,” the panel spelled out in its concise order.

Consequently, it appears the next step in the legal saga, which stems from alleged infringement that occurred back when the iPhone 6, the PlayStation 4, and first-generation Amazon Echo devices were new, is the fresh damages trial. Needless to say, that potential conclusion to the marathon dispute will be particularly important for Cox.