Novel Legal Issues Drove Costs in ISP Piracy Legal Fight, Cox Says

No court previously addressed the particular copyright issues involving a conduit ISP that came up in BMG v. Cox Communications, so there "was nothing objectively unreasonable" about the cable operator's staking out a position adhering to the Copyright Act, the ISP said in an opposition (in Pacer) Monday to the plaintiff's motion for $10.48 million in attorney's fees and $2.92 million in expenses (see 1610030005). The Supreme Court's decision earlier this year in Kirtsaeng v. John Wiley & Sons made clear that awarding fees in a case that meaningfully clarifies the law doesn't serve the Copyright Act, Cox said. The company said that in seeking the award, BMG is ignoring the novelty of the legal issues and instead "attempt[ing] to re-litigate virtually every skirmish, disagreement and discovery dispute, wrongly portraying Cox as wearing the black hat in every instance." Cox said the $25 million jury award given the music company includes compensation and deterrence, but even if the court wanted to award fees, BMG is seeking far too much, given the jury's split decision and the few remedies BMG sought -- such as its unsuccessful vicarious liability claim and permanent injunction -- that it achieved. BMG didn't comment Tuesday.