Fourth Circuit refuses to rehear $25m piracy case

[Len]

The US Court of Appeals for the Fourth Circuit has refused to rehear a $25 million piracy dispute between internet service provider (ISP) Cox Communications and music licensing body BMG Rights Management.

In early February, TBO reported that the Fourth Circuit had tossed a $25 million verdict against Cox and ordered a new trial because it found that the district court had incorrectly instructed the jury on contributory infringement in the clash.

But the Fourth Circuit also found that Cox Communications had forfeited its right to a safe harbour provision under the Digital Millennium Copyright Act.

Two weeks later, BMG petitioned the Fourth Circuit for a rehearing by the panel or a rehearing by the court en banc.

According to the music licensing body, the court, in ordering a new trial, had “mistakenly applied” legal principles relevant to an ‘inducement’ theory of liability, rather than for a claim of “material contribution” (which BMG had pursued).

BMG added: “The panel’s unprecedented application of a heightened knowledge standard creates a conflict with decisions and pattern jury instructions from other circuits as well as with the common-law rules underlying contributory infringement.”

In support of BMG’s request, two music associations applied for leave to file a brief.

The Fourth Circuit’s holding that liability based on a theory of material contribution cannot rest on constructive knowledge “erroneously undermines a critical protection that creators depend on”, alleged the Recording Industry Association of America and the National Music Publishers’ Association.

The court accepted the briefs on February 26, but rejected the request for a rehearing the following day.

BMG could appeal to the US Supreme Court.