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Majors v Cox Communications will stay in the same court as the BMG case

By Chris Cooke | Published on Wednesday 21 November 2018

An American judge has published a written statement explaining why he has resisted efforts by internet service provider Cox Communications to have a copyright infringement case being pursued against them by the major record companies shifted to another courtroom.

The Recording Industry Association Of America sued Cox back in August, following the lead of BMG, which was first to go legal against the ISP. BMG claimed that Cox should be held liable for the copyright infringement of its customers, because it failed to fulfil its obligations under America’s Digital Millennium Copyright Act to benefit from safe harbour protection.

Safe harbour rules say that internet companies can’t be held liable for their users’ infringement providing they have systems in place to remove infringing content and deal with repeat infringers. However, BMG successfully argued that Cox only paid lip service to those obligations, and in fact had a deliberately shoddy system for dealing with those who repeatedly infringed. As a result, BMG said, the net firm should be held liable for that infringement.

BMG won that case at first instance and – while that ruling was set aside on appeal – the appeals court nevertheless agreed with much of the original judgement, the case being dismissed on a technicality. Cox then subsequently settled with BMG.

The RIAA launched its lawsuit in the same court as BMG, which is in Virginia under judge Liam O’Grady. Cox has been trying to have the case shifted to a court in Georgia where it is actually based. However, O’Grady has declined to give the case up, arguing that it makes sense to hear the new action in the court where the BMG dispute was argued out, as many of the issues will be the same.

According to Law360, O’Grady wrote: “Although defendants claim this court’s ruling on the DMCA’s safe harbour provision will not be relevant to this case, this court’s prior ruling will at the very least touch on the issues presented here. The considerable judicial resources this court expended on reaching this ruling on an issue of first impression – a ruling that was upheld by the [appeals court] – cannot be ignored”.

Although he conceded that some of Cox’s arguments for shifting this lawsuit to Georgia had merit, he said that “judicial economy” required him to keep the case, as neither the district court of Georgia nor the relevant appeals court had previously considered safe harbour issues. The labels, needless to say, have accused Cox of simply want to remove the new litigation from a court that has previously been sympathetic to the rights owner side.