Music Publisher Goes for Victory in Trailblazing Piracy Trial

BMG Rights Management, which administers works by songwriters including Bruno Mars and Frank Ocean, asks a judge to find against Cox Communications.
AP Images/Invision

A verdict will likely come soon in a landmark case examining the responsibilities of Internet service providers with regards to piracy. BMG Rights Management, which is pursuing Cox Communications for the alleged copyright violations of its users, is demanding judgment sooner rather than later.

Last month, a federal judge let the case go to trial with an eye-opening decision that denied safe harbor to Cox because of its failure to reasonably implement a repeat-infringer policy.  

With the case now proceeding in Virginia, BMG filed a motion on Monday seeking a judgment as a matter of law, telling a judge that Cox has "wholly failed to present evidence sufficient to establish any defense in this action."

The music publisher, which controls rights to works by David Bowie, Bruno Mars, Frank Ocean and many other artists, states that it has shown that its agent Rightscorp detected 1.847 million instances of infringement and collected more than 150,000 copies of copyrighted works downloaded directly from Cox subscribers.

BMG is pushing for a verdict that would find Cox liable for direct, contributory and vicarious copyright infringement. The publisher asserts that Cox had actual knowledge of subscribers' infringement, provided sites and facilities for which the infringement occurred, had the right and ability to supervise the infringing activity and obtained a direct financial benefit from the infringements.

Cox could be facing hundreds of millions of dollars in damages.

BMG argues that Cox cannot qualify as an "innocent" infringer, with reduced statutory damages of $200 per work, because of the notice given to the ISP from Rightscorp. BMG also says no reasonable juror can conclude it failed to mitigate damages by taking actions such as suing torrent indexing sites.

The motion (read here) also attempts to rebut certain defenses that Cox initially raised in the lawsuit including copyright misuse (BMG says there's no evidence it committed anticompetitive behavior), statute of limitations or subject matter jurisdiction.

Cox will soon oppose the motion and in the meantime, the Internet service provider is eyeing jury instructions. 

Although Cox lost the safe-harbor battle in last month's summary judgment opinion, it did win one aspect of the undercard by getting a judge to nix an attempt to have "making available" included as part of a copyright owner's distribution rights. The judge wrote that distribution is not interchangeable with publication.

Cox looks to preserve that victory and tells a judge that BMG is attempting to revive the "making available" argument in jury instructions by arguing that the Napster case decided that uploading file titles to an index constitutes distribution. Cox says instead that BMG must show an "actual dissemination of a copyright work" for purposes of direct infringement.

The issue could be meaningful, or at least figures to be the centerpiece of Cox's closing arguments over what BMG has failed to prove.

Elsewhere in its legal brief (see here), Cox writes, "Plaintiffs have not submitted any evidence of an actual upload by a user of the Cox Internet service to another Internet user. The only evidence of actual distributions of plaintiffs’ works are the downloads performed by plaintiffs’ own agent Rightscorp or its expert Barbara Frederiksen-Cross."

As for contributory infringement, Cox is also urging the jury not to be instructed on willful blindness. It argues, "Cox believes that neither any court in the Fourth Circuit nor the Supreme Court has ever held that willful blindness is considered to be knowledge in copyright law, and Plaintiffs cite no such authority."