199 F. Supp. 3d 958
E.D. Va.2016Background
- BMG sued Cox alleging secondary copyright liability (vicarious and contributory) for users’ uploading/downloading of 1,397 musical compositions over Cox’s network (Feb 2012–Nov 2014). A jury found Cox not vicariously liable but liable for willful contributory infringement and awarded $25 million. The Court now resolves post-trial motions.
- Cox is a conduit ISP that implemented a written Acceptable Use Policy and a 13-step graduated-response system for repeat infringers; Cox required DMCA‑style notices to trigger action. Cox blacklisted notices from BMG’s monitoring agent, Rightscorp, because those notices contained settlement demands.
- Rightscorp monitored BitTorrent swarms, recorded peer IP/port, bitfield, and torrent hash, and generated infringement notices when peers reported 100% of a payload; Rightscorp sampled and downloaded many claimed infringing files to confirm matches but did not preserve complete historical source code for its detection system.
- At trial Cox challenged Rightscorp’s data accuracy (errors, potential lower bitfield thresholds, inability to observe choke/unchoke or identify actual human users behind IPs, and missing code versions). BMG presented experts and sampled downloads to support Rightscorp’s reliability.
- The court ruled Cox was not entitled to DMCA safe harbor (because Cox’s repeat‑infringer policy was not reasonably implemented) and permitted BMG’s contributory‑infringement theory to proceed; post-trial, the court denied Cox’s renewed JMOL/new‑trial motion and denied BMG’s JMOL on vicarious liability and its motion for a permanent injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of direct‑infringement evidence | Rightscorp’s handshake data and sampled downloads show Cox IPs uploaded/distributed BMG works | Rightscorp’s data is unreliable, cannot confirm actual uploads (no choke/unchoke), and identifies only IPs not people | Court: Evidence viewed favorably to BMG was sufficient for a reasonable jury to find direct infringement by users tied to Cox IPs |
| Contributory infringement (knowledge + material contribution) | Cox received specific notice‑level data (1.8M notices, summaries, dashboard) and willfully ignored it while continuing to provide infrastructure that materially enables infringement | Sony/Grokster immunity: ISP’s service has substantial noninfringing uses; without an inducement claim, Sony protects Cox | Court: Sony does not bar contributory liability where defendant has ongoing relationship, specific notice, and material ability to intervene; jury could find Cox knew or was willfully blind and materially contributed by providing high‑speed access |
| Willfulness | Cox acted with reckless disregard or willful blindness to known infringement (failed to act on Rightscorp notices; termination/reactivation practices undermined policy) | Jury’s willfulness finding required more than contributory‑liability proof; evidence insufficient | Court: Willfulness standard adopted (actual knowledge, reckless disregard, or willful blindness); record supported jury’s willfulness finding |
| Permanent injunction | Injunctive relief needed to prevent continuing irreparable harm; proposed order sets concrete notice/response duties | Proposed injunction is vague, overbroad, would impose heavy operational/privacy burdens, and lacks practicable, specific obligations (and BMG misstated post‑verdict facts about Rightscorp notices) | Court: Denied — BMG failed to show injunctive‑specific elements and proposed order violated Rule 65(d) and raised public‑interest/privacy concerns |
Key Cases Cited
- Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (U.S. 1984) (sale of dual‑use technology is not contributory infringement if capable of substantial noninfringing uses)
- Metro‑Goldwyn‑Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (U.S. 2005) (inducement doctrine; Sony does not displace other fault‑based secondary liability theories)
- A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (peer‑to‑peer file‑sharing services can enable direct infringement by users)
- CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) (contributory infringement requires knowledge of infringing activity)
- Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007) (material contribution and ongoing relationship can defeat Sony defense)
- Religious Technology Center v. Netcom On‑Line Commc’n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) (ISP liability doctrine recognizing potential secondary liability for ISPs)
- Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013) (tailoring injunctions in the file‑sharing context; limits on enjoining lawful internet uses)