Labels, Publishers Urge 4th Circuit to Deny Cox’s Motion for Appellate Costs

The 4th U.S. Circuit Court of Appeals should deny Cox Communications’ motion for the four dozen record labels and music publisher plaintiff-appellees in its appeal to pay Cox's appellate costs, said their response in opposition Monday (docket 21-1168). A district court jury found Cox liable for willful infringement of more than 10,000 of the plaintiffs’ copyrighted works, it said. On appeal, a 4th Circuit panel upheld one basis of liability and remanded for further proceedings on statutory damages (see 2402210027), it said. “Yet Cox now wants the holders of those infringed copyrights to pay Cox’s appellate costs,” including half the costs of the supersedeas bond that Cox used to secure the jury’s damages award, plus nearly $2,100 in filing and printing costs, it said. The 4th Circuit should hold that the parties are responsible for their own costs, it said. Cox’s request for bond costs “fails at the outset,” it said. “Cox’s request proceeds from the fundamentally incorrect premise that it is a prevailing party,” it said. It isn’t because the panel “affirmed the jury’s liability finding,” it said. Though the damages award was vacated, that same award, or more for that matter, “could be reimposed for Cox’s willful contributory infringement on remand,” it said. In a “mixed-result appeal” like this one, courts customarily hold the parties to their own costs, it said. Cox’s bill of cost also is “wildly inflated,” it said. At most, Cox can recover $548.70 in filing and printing costs, it said. Meanwhile, the 4th Circuit, in an order Tuesday, denied the plaintiffs’ petition for rehearing or rehearing en banc of the panel’s Feb. 20 reversal of the jury’s vicarious liability verdict against Cox (see 2403060028), and Cox’s petition for rehearing of the panel’s affirmation of the jury’s finding of willful contributory copyright infringement (see 2403070003). No judge requested a poll under Federal Rule of Appellate Procedure 35 on the petitions for rehearing en banc, said the order, which was entered at the direction of the panel of Circuit Judges Pamela Harris, Allison Jones Rushing and Henry Floyd.