Major Labels Fire Back in Cox Supreme Court Showdown

The Supreme Court Building. Photo Credit: Stephen Talas

Amid a high-stakes Supreme Court case, the major labels have fired back against Cox Communications and the ISP’s alleged “shocking disregard” for their copyrights.

Sony Music and the other majors submitted a more than 50-page brief today, about seven weeks after Cox offered a brief of its own. We broke down the latter at length, and admittedly, neither it nor the majors’ fresh filing introduced any especially surprising details.

That’s probably par for the course at this stage of the game given that the wider legal battle has been raging on for over half a decade.

Nevertheless, there’s certainly a lot riding on the Supreme Court showdown for both Cox (which a jury in late 2019 ordered to pay a staggering $1 billion) and the majors (which are embroiled in several other ISP copyright confrontations, most or all of which have been paused pending the outcome here).

Against this backdrop, Cox previously expressed the belief that its “highly effective anti-infringement program” had actually deterred subscribers from becoming repeat infringers. And holding it liable for subscribers’ alleged infringement would leave ISPs generally with “no choice but to err in favor of termination” – purportedly depriving Americans of internet access in the process.

“While Cox has much to say about the perils of hair-trigger liability for one-off infringement,” the majors retorted today, “it ignores the district court’s unchallenged holding that the three (and often more) infringement notices Cox received for each subscriber at issue sufficed to establish that Cox knew each was likely to infringe again.

“While Cox waxes poetic about the centrality of internet access to modern life,” they proceeded, “it neglects to mention that it had no qualms about terminating 619,711 subscribers for nonpayment over the same period that it terminated just 32 for serial copyright abuse.  And while Cox stokes fears of innocent grandmothers and hospitals being tossed off the internet for someone else’s infringement, Cox put on zero evidence that any subscriber here fit that bill.”

Not stopping there, the majors doubled down on their view of the jury’s (ultimately overturned) $1 billion verdict as a proportional response to Cox’s alleged “deliberate and egregious decision to elevate its own profits over compliance with the law.”

Still haunting the ISP as well are not-so-helpful messages (“F the dmca!!!”) sent by higher-ups in charge of handling DMCA takedown notices. (Cox downplayed these internal emails in its above-mentioned brief.)

And as described by the majors, the remarks underscored “open contempt” for the DMCA and a workplace culture where ignoring takedown notices was the norm.

“During the two-year period at issue,” the labels wrote in one relevant section, “Cox received roughly 5.8 million infringement notices—though, due to its self imposed throttling practice, it deleted roughly two thirds of them. That was not an accident; the trial record revealed that the very people at Cox responsible for DMCA compliance held these notices and the DMCA itself in open contempt.”

Furthermore, Cox allegedly responded to “only 22% of RIAA notices” per 24-hour period, established “a patently unreasonable 13 strike policy” for account terminations stemming from said notices, and then refused “to terminate even known habitual offenders,” the majors rattled off.

Needless to say, those are only some of the labels’ arguments, with other parts of the brief diving into Cox’s lack of a safe-harbor defense, the jury-instruction weeds (“the evidence leaves no doubt that the jury would have found willfulness with or without the knowledge instruction”), and different areas.

“In short,” they concluded, “Cox did not fail to appreciate the law; it just decided that it was more interested in maximizing profits than in trying to comply with it. If Cox really thought its ‘unwritten semi-policy’ of reactivating serial infringers after ‘a stern warning’ and its special exception for serial infringers with ‘a Cox.net email’ were permissible ways to address serial infringement, then it would not have instructed employees to ‘not talk about’ them publicly and to make sure to ‘not forward’ emails announcing them.”