Cox Wants Judge, Not Jury, to Rule on Crucial Piracy Liability Questions

Regular Internet providers are being put under increasing pressure for not doing enough to curb copyright infringement.

Music rights company BMG got the ball rolling a few years ago when it won its piracy liability lawsuit against Cox Communications.

The ISP eventually agreed to pay millions of dollars in damages, but that didn’t end the troubles. Last year a group of RIAA labels filed a similar piracy liability suit which is currently under trial.

For more than two weeks, Cox and the music companies have presented their case to the jury in a Virginia federal court. However, now that both parties have been heard, the ISP would prefer the court to rule on the matter.

Yesterday Cox submitted a motion for a judgment of federal law. If granted, this will leave the judgment of several crucial issues up to the court instead of the jury.

Such a request is allowed when the evidence can only lead the jury to reach one conclusion, or if the verdict would be based on speculation and conjecture. Both of these issues can play a role in this case, according to Cox.

In its motion, the ISP asks the court to rule that there is no evidence of direct infringement by Cox subscribers. This is a crucial matter, as it’s a requirement to prove contributory and vicarious infringement, which are at the basis of the liability claims.

According to Cox, the music companies presented no evidence which proves that all affected subscribers reproduced pirated content. While it’s clear that subscribers made music available through BitTorrent, these files could have been purchased legally, the company argues.

“The MarkMonitor system cannot determine whether the purported copies of Plaintiffs’ works on devices associated with Cox subscribers’ IP addresses were initially purchased from iTunes, legally uploaded from a purchased CD, or obtained from another legal source,” Cox notes.

MarkMonitor’s tracking system revealed that subscribers made files available for others to download. However, it didn’t always show that these files were illegally obtained. According to a witness, most subscribers already had a full copy and ‘only’ 15% were still downloading files.

The 15% figure would leave the jury with guess-work, Cox argues, which can be a critical shortcoming.

Furthermore, it’s argues that the music companies have no proof that any subscribers distributed infringing copies. while there was an easy option to actually prove the matter if the tracking systems were configured properly.

“The easy and obvious way to prove that a Cox subscriber ‘actually disseminated’ a particular recording would have been to use a file-sharing protocol to actually download that recording directly from the subscriber’s computer,” Cox writes.

The music companies also failed to show that piracy acted as a “draw” to potential customers, the ISP notes.

“There is no evidence showing that any subscribers were drawn to Cox’s service by the availability of unauthorized copies of Plaintiffs’ works, or for that matter the availability of any infringing works.”

In addition, the ISP argues that it can’t be held liable for alleged infringements of business subscribers. While Cox was made aware of these, businesses can have hundreds or thousands of users, and Cox can’t identify these based on a single IP-address.

Based on these and various other arguments Cox argues that it’s clearly not liable for contributory or vicarious infringement. As such, it asks the court to rule on these issues, instead of leaving it up to the jury.

Finally, the ISP requests a similar judgment when it comes to potential damages. The music companies request statutory damages for sound recordings, compositions, compilations, and other derivatives that point to the same tracks. As such, it requests to limit the damage claims to one award per work.

The above is obviously all based on Cox’s viewpoint and the music companies are likely to argue the opposite. Many of these issues were previously argued earlier in the legal proceedings when Cox asked for summary judgment.

At the time, the court opted to leave the issues open for the jury to decide. Whether it will rule differently now that both parties have presented their arguments in court will become apparent in the near future.

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A copy of Cox Communication’s motion for a judgment of federal law is available here (pdf).

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