Fourth Circuit Finds District Court Erred in Contributory Infringement Jury Instruction

Friday, February 9, 2018

BMG, a music publishing company, brought a lawsuit against Cox Communications, Inc., an Internet Service Provider (“ISP”), asserting that Cox was contributorily liable for infringement of BMG’s copyrights due to actions of certain subscribers to Cox’s Internet service.  The district court instructed the jury that Cox could be liable for contributory infringement if the jury found “Cox knew or should have known of such infringing activity” by its subscribers.  The Fourth Circuit held that the instruction was in error because contributory infringement requires that the accused infringer exercise an intent to infringe or willful blindness.  Negligence or recklessness on the part of the accused is not sufficient to establish contributory infringement, and therefore “shown have known” of infringing activity is “too low” a standard.  The Fourth Circuit further held that Cox’s “generalized knowledge” that infringement was occurring somewhere on its network was insufficient to establish contributory infringement; Cox must know of specific instances of infringement or be willfully blind to such instances in order to be liable for contributory copyright infringement.  The Fourth Circuit reversed and remanded for a new trial on the issue of contributory infringement.  BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., Nos. 17-1352, 17-1353, 16-1972, 2018 WL 650316 (4th Cir. Feb. 1, 2018).