Cox Asks 4th Circuit to Stay Mandate in Its Contributory Infringement Appeal

Cox Communications is asking the 4th U.S. Circuit Appeals Court to stay the issuance of its mandate in Cox’s contributory copyright infringement appeal pending the resolution of further appellate proceedings in the 4th Circuit and in the U.S. Supreme Court, said its motion Monday (docket 21-1168). A 4th Circuit panel last month affirmed a district court jury’s finding of willful contributory copyright infringement against Cox for the piracy actions of some of its 6 million internet customers, but it reversed the jury’s vicarious liability verdict, and remanded the case to U.S. District Court for Eastern Virginia for a new trial on damages (see 2402210027). A stay of the mandate is warranted on “two independent grounds,” said Cox’s motion. The 4th Circuit hasn’t yet resolved all of Cox’s challenges to the initial judgment from which Cox appealed, it said. Still pending in the 4th Circuit is Cox’s appeal from the denial of its motions for relief from that judgment under Federal Rule of Civil Procedure 60(b), it said. If the 4th Circuit issues the mandate and the district court proceeds with litigation on damages, “it would not only risk unnecessary or piecemeal litigation” but also impede the 4th Circuit’s ability “to fully resolve the challenges to the judgment,” it said. The 4th Circuit should stay the mandate “to avoid that harm,” it said. A stay also is warranted pending Cox’s cert petition to the Supreme Court, said its motion. This case presents “two exceptionally important questions” on which the 4th Circuit’s rulings “depart from those of other circuits,” it said. The first is whether an internet service provider materially contributes to copyright infringement by declining to disconnect an internet account knowing someone is likely to use it to infringe, it said. On that question, the panel’s decision “creates a three-way circuit split and raises substantial questions implicated by recent Supreme Court law,” it said. The second question is whether a secondary infringer can be adjudged willful based merely on knowledge of another’s direct infringement, it said. The 4th Circuit’s law, settled before the panel decision, conflicts with 8th Circuit law and “bedrock willfulness principles,” it said. If the mandate issues and the district court purports to exercise jurisdiction over further proceedings, Cox would be “irreparably deprived of its opportunity to obtain full and fair appellate review of the initial liability judgment before being subjected to damages proceedings in the district court,” it said. The district court “would be proceeding in parallel with retrial proceedings that purport to settle Cox’s rights and obligations on damages issues, while two appellate courts evaluate whether liability is appropriate in the first instance,” it said.