Labels Cite 4th Circuit's Rulings in Cox Case as Grounds to Affirm in 5th

Universal Music Group and other record label plaintiffs want the 5th U.S. Circuit Appeals Court to reject primary liability arguments by internet service provider Grande Communications Network, per the recent 4th Circuit decision in Sony Music Entertainment v. Cox Communications (see 2402210027), said their letter of supplemental authorities Thursday (docket 23-50162). The plaintiffs noted the appeals court affirmed a jury’s finding that Cox was willfully liable for contributory copyright infringement because it knowingly continued to provide its internet services to infringing subscribers, said the letter. By doing so, the 4th Circuit “directly rejected the primary liability arguments” made by defendant Grande in its appeal of that case where a jury awarded $46.7 million in statutory damages to the music labels on grounds that Grande provided internet service to “direct infringers,” said the letter. In Cox, the 4th Circuit applied the “well-established principle that material contribution is an appropriate basis for a finding of contributory copyright liability,” said the plaintiffs. The appeals court concluded “that where, as here, an ISP knew of specific instances of repeat infringement by specific users and 'chose to continue’ providing services to them, a jury is entitled to find material contribution,” the letter said. The rulings are “incompatible with Grande’s primary arguments that material contribution is insufficient to prove contributory infringement and that Grande did not materially contribute as a matter of law,” it said. The 4th Circuit reached its conclusions “fully aware of Twitter, Inc. v. Taamneh, “on which Grande relies,” it said, noting Cox brought Twitter to the 4th Circuit’s attention in a Rule 28(j) letter, “making the same arguments about that case that Grande has raised here.” But the 4th Circuit “held that imposing contributory liability on ISPs on the facts presented in Cox (and in this case) comports with the traditional principles of aiding and abetting liability that Twitter addressed," it said. Cox provides "powerful support" for plaintiffs' position that "this Court should affirm" the district court's judgment in Grande, it said.