• by Wendy Davis  @wendyndavis, February 3, 2020

Internet service provider Cox Communications is asking a federal judge to reverse a jury's decision requiring the company to pay record labels $1 billion over piracy by subscribers.

In papers filed Friday with U.S. District Court Judge Liam O'Grady in Alexandria, Virginia, Cox argues that it took steps to stem copyright infringement by users, and therefore isn't responsible for their piracy.

“The evidence shows that Cox had an active and effective policy of discouraging infringement, notifying its subscribers of infringement allegations, graduating to soft and then hard suspensions, and ultimately -- in some cases -- terminating the subscriber,” the company writes. “On this evidence, a reasonable jury could not conclude that Cox was 'encouraging or assisting' that infringement.”

Cox's new papers come one month after a federal jury found that the company failed to take reasonable measures to stem subscribers from pirating more than 10,000 tracks. The jury returned a verdict of $1 billion, or nearly $100,000 per song.

The battle dates to 2018, when Sony and other music companies sued Cox for allegedly turning a blind eye to infringement by users.

Cox now says the verdict against it should be reversed for numerous reasons, including that it didn't benefit financially from the alleged piracy.

“It is undisputed that the only revenue Cox received from its subscribers was a monthly subscription fee,” the company writes. “There is no evidence that anything about Cox’s service, as opposed to any other, specifically drew customers who wanted to infringe plaintiffs’ works.”

Cox adds that its user agreement prohibited copyright infringement, and that its policies discouraged piracy “through warnings, suspensions, and -- occasionally -- terminations.”

The broadband provider is alternatively asking O'Grady to either reduce the $1 billion damages award on the grounds that it is excessive, or order a new trial.

“The $1 billion verdict in this case is a shocking miscarriage of justice,” the company writes. “It is wholly disproportionate to the evidence of harm to plaintiffs, benefit to Cox, or any demonstrated need for deterrence.”

The company adds that if the verdict stands, it will be the largest ever awarded in the Eastern District of Virginia.

Cox previously settled a similar lawsuit by the record label BMG.

In that matter, Cox initially argued that it was protected by the federal copyright law's so-called "safe harbor" provisions, which immunize Internet service providers from liability for infringement by users -- but only if the broadband providers have policies for handling repeat offenders.

While Cox had a repeat-offender policy, the company didn't implement it, according to the 4th Circuit Court of Appeals.

In an opinion issued in February of 2018, a three-judge panel of the 4th Circuit wrote that Cox didn't enforce its “13-strike” repeat offender policy, which would have required the company to consider terminating subscribers after they received 13 notices of copyright infringement.