Recently, the Eastern District of Virginia upheld a music piracy jury verdict against the internet service provider Cox Communications. See Sony Music Ent. v. Cox Commc’ns, Case No. 1:18-cv-950-LO-JFA, 2020 U.S. Dist. LEXIS 105071 (E.D. Va. June 2, 2020). The jury returned a $1 billion damage award against Cox Communications who was accused of knowingly allowing subscribers to share and download infringing songs via peer-to-peer sharing platforms such as BitTorrent. Holding an internet service provider liable for the infringing acts of its users, this case sets the stage for a closely watched appeal.
Record labels, including Universal Music Group, Sony Music Entertainment, and Warner Music Group, Inc., sued Cox for enabling subscribers to illegally copy and distribute works over peer-to-peer networks. Internet service providers, such as Cox, Comcast, Verizon, and Time Warner that provide internet, telephone, and home security services to customers are generally not liable for direct infringement, but can be liable for secondary infringement if they have specific knowledge of the infringement and fail to take reasonable steps to prevent further harm to the copyrighted works. Where an ISP receives a direct pecuniary benefit from the infringing activity, it may also be vicariously liable for the infringement. In this case, the jury returned a verdict finding Cox liable for both vicarious copyright infringement and contributory copyright infringement of over 10,000 musical works, and determining Cox enjoyed a direct financial benefit from the infringement activities of its subscribers. After trial, Cox filed a Renewed Motion for Judgment as a Matter of Law and a Motion for Remittitur or, in the Alternative, a New Trial.
Siding with the record labels, the Eastern District of Virginia upheld the jury verdict, ruling there was enough evidence to hold Cox liable for illegal downloading by its subscribers. The jury found Cox failed to address the copyright infringement despite receiving information from the copyright owners about the time, place, and IP addresses responsible for illegally distributing and reproducing music files over Cox’s network. The court agreed there was enough evidence to find the technology used to detect the infringement was reliable, Cox had the right and ability to supervise the infringement committed by its subscribers, and Cox gained a financial benefit from the infringement. There was sufficient basis for the jury to find Cox liable for vicarious copyright infringement, and because Cox failed to address the specific notices of infringement, for contributory infringement as well.
The court rejected Cox’s argument that the statutory damage award was “grossly excessive,” refusing to overturn the jury’s decision to award $99,830.29 per infringed work. Among other things, the court held jurors were entitled to consider the “far-reaching adverse effects of piracy” on the entire digital media ecosystem when punishing Cox. On one hand, the court said the award was proper because some of the songs at issue covered multiple copyrights — separate musical compositions and sound recordings for the same song — however, it determined that the number of infringed works would be recalculated for this same reason, i.e. because some of the copyrights at issue cover musical compositions and sound recordings for the same song. The court stated the parties should be given the opportunity to identify overlapping copyrights and determine the exact number of distinct works that have been infringed. It is likely the $1 billion award will be reduced when musical compositions and sound recordings are combined for individual songs (reducing the number of total works), but the jury-determined $99,830.29 award per work will remain the same.
The court denied the motion for remittitur or, in the alternative, a new trial for similar reasons, finding there was sufficient evidence to support the jury’s damage award and there was no error in the jury instructions. Although the court has the authority to remit damages, the evidence of Cox’s overall conduct with respect to enforcement of the Digital Millennium Copyright Act, and how the company handled complaints of copyright infringement, supported the jury’s measure of damages.
Although it is likely that the court will reduce the $1 billion award, this was nevertheless a major victory for copyright owners – for now. Only time will tell what the Fourth Circuit will do on appeal.
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Anheuser-Busch and Molson Coors produce some of the best-selling light beers in the United States — Bud Light, and Miller Lite and Coors Light, respectively — and regularly attack each other with witty ad campaigns. During Super Bowl LIII, Anheuser-Busch unveiled an advertisement campaign focused on the idea that Bud Light is made using rice as opposed to corn syrup. The Bud Light advertisements called attention to Miller Lite and Coors Light’s use of corn syrup as a source of sugar for the fermentation process. In response, Molson Coors advertised that its beer tastes better because of the corn syrup, which is not the same as high-fructose corn syrup used in other consumer products. Molson Coors also filed a lawsuit arguing that Anheuser-Busch violated Section 43 of the Lanham Act “by implying that a product made from corn syrup also contains corn syrup.”
Molson Coors acknowledged that both Miller Lite and Coors Light are made using corn syrup and that Bud Light is not. Molson also acknowledged that corn syrup is listed as an ingredient in both Miller Lite and Coors Light. Molson, however, insisted that the list of ingredients is not the same as what the finished product “contains.” The Seventh Circuit found that although it is possible for an ingredient list to be treated as “inputs” instead of a list of what is in the finished product, the common usage of an ingredients list equates to the constituents of the product. Additionally, Anheuser-Busch never advertised that the rival products “contain” corn syrup, but consumers could infer as much from the statements made. But the Seventh Circuit found that consumers could infer the same thing from Molson’s own ingredient list. The court could not hold that it was false or misleading for a rival to make a statement that a competitor makes about itself.
More than 250,000 Humvees have been built since the 1980s, making them a distinct feature of the nation’s military history over the past quarter-century. As a result, the vehicle has become a recognizable staple in military-themed movies, television shows, newscasts, and video games. According to a group of curious law professors, the Humvee has been featured in over 1,000 movies and shows. But the maker of Humvees thought the inclusion of its military vehicles in the wildly successful Call of Duty video games infringed on its trademark rights. The Southern District of New York disagreed, however, and reaffirmed that video games, such as movies and television shows, can feature real-life trademarks, such as Humvees, without infringing on the owner’s trademark. See AM Gen. LLC v. Activision Blizzard, Inc., 17 Civ. 8644 (GBD), 2020 U.S. Dist. LEXIS 57121 (S.D.N.Y. Mar. 31, 2020). Citing the First Amendment, the District Court determined the game developer could not be held liable for trademark infringement for featuring Humvees in its Call of Duty video games. Dismissing the lawsuit, the court found the video game maker had the right to use a real-life well-known military vehicle in an expressive work focused on realistically depicting modern combat and warfare.
In 1983, the United States Department of Defense contracted with AM General LLC to build the Humvee, which is still an essential vehicle for military operations not only in the United States but in over 50 countries. In the past, AM General has granted licenses to companies looking to use the Humvee trademark in connection with a wide variety of products, including video games, movies, and television series. Activision Blizzard Inc. developed the first-person shooter series Call of Duty, which is “characterized by its realism, cinematic set-pieces, and fast-paced multiplayer mode.” Selling over 130 copies, the Call of Duty games depict Humvees in various ways—sometimes the vehicle is mentioned in dialogue and can be seen in the background, and other times players can assume control of a Humvee. Additionally, Humvees are used in trailers and strategy guides for the games. Activision also licensed a toy company to manufacture toys related to the game, two of which are vehicles with distinctive Humvee elements.
Applying the Rogers test, the Southern District of New York found the use of Humvees in Call of Duty had artistic relevance – actual vehicles used by the military created a realistic and lifelike gaming experience. Amplifying, the court found the use of Humvees in the video game “easily met the artistic relevance requirement” by giving players “a sense of a particularized reality of being part of an actual elite special forces operation and serv[ing] as a means to increase specific realism of the game.” Therefore, the use of Humvees served an artistic purpose and had artistic value.
As they say, the only two certainties in life are death and taxes. At some point we will all mourn the loss of a loved one. Once the mourning is completed, questions may arise whether the decedent had a last will and testament under which you might be a beneficiary. If so, the question may then become when might you receive your inheritance. This question is frequently raised, however, the answer is not as simple as some might believe.