Sony Music Entertainment v. Cox Communications, Incorporated

93 F.4th 222

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 20, 2024
• Docket: 21-1168
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1168

SONY MUSIC ENTERTAINMENT; ARISTA MUSIC; ARISTA RECORDS, LLC; LAFACE RECORDS LLC; PROVIDENT LABEL GROUP, LLC; SONY MUSIC ENTERTAINMENT US LATIN LLC; VOLCANO ENTERTAINMENT III, LLC; ZOMBA RECORDINGS LLC; SONY/ATV MUSIC PUBLISHING LLC; EMI AI GALLICO MUSIC CORP.; EMI ALGEE MUSIC CORP.; EMI APRIL MUSIC INC.; EMI BLACKWOOD MUSIC INC.; COLGEMS-EMI MUSIC INC.; EMI CONSORTIUM MUSIC PUBLISHING INC., d/b/a EMI Full Keel Music; EMI CONSORTIUM SONGS, INC., d/b/a EMI Longitude Music; EMI FEIST CATALOG INC.; EMI MILLER CATALOG INC.; EMI MILLS MUSIC, INC.; EMI UNART CATALOG INC.; EMI U CATALOG INC.; JOBETE MUSIC COMPANY, INCORPORATED; STONE AGATE MUSIC; SCREEN GEMS-EMI MUSIC, INCORPORATED; STONE DIAMOND MUSIC CORP.; ATLANTIC RECORDING CORPORATION; BAD BOYS RECORDS LLC; ELEKTRA ENTERTAINMENT GROUP, INCORPORATED; FUELED BY RAMEN LLC; ROADRUNNER RECORDS, INC.; WARNER-TAMERLANE PUBLISHING CORPORATION; WB MUSIC CORPORATION; UNICHAPPELL MUSIC, INCORPORATED; RIGHTSONG MUSIC INC.; COTILLION MUSIC, INCORPORATED; INTERSONG U.S.A., INC.; UMG RECORDINGS, INCORPORATED; CAPITOL RECORDS, LLC; UNIVERSAL MUSIC CORPORATION; UNIVERSAL MUSIC-MGB NA LLC; UNIVERSAL MUSIC PUBLISHING INC.; UNIVERSAL MUSIC PUBLISHING AB; UNIVERSAL PUBLISHING LIMITED; UNIVERSAL MUSIC PUBLISHING MGB LIMITED; UNIVERSAL MUSIC - Z TUNES LLC; UNIVERSAL/ISLAND MUSIC LIMITED; UNIVERSAL/MCA MUSIC PUBLISHING PTY. LIMITED; POLYGRAM PUBLISHING, INC.; SONGS OF UNIVERSAL, INC.; WARNER RECORDS, INC., f/k/a W.B.M. Music Corp.; WARNER CHAPPELL MUSIC, INC., f/k/a Warner/Chappell Music, Inc.; W.C.M. MUSIC CORP., f/k/a W.B.M. Music Corp.,

Plaintiffs – Appellees,

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NONESUCH RECORDS INC.; WARNER BROS. RECORDS, INC.; WARNER/CHAPPELL MUSIC, INC.; W.B.M. MUSIC CORP.; UNIVERSAL - POLYGRAM INTERNATIONAL TUNES, INC.; UNIVERSAL - SONGS OF POLYGRAM INTERNATIONAL, INC.; UNIVERSAL POLYGRAM INTERNATIONAL PUBLISHING, INC.; MUSIC CORPORATION OF AMERICA, INC., d/b/a Universal Music Corporation; RONDOR MUSIC INTERNATIONAL,

Plaintiffs,

v.

COX COMMUNICATIONS, INCORPORATED; COXCOM, LLC,

Defendants – Appellants.

-------------------------

INTERNET ASSOCIATION; ELECTRONIC FRONTIER FOUNDATION; CENTER FOR DEMOCRACY AND TECHNOLOGY; AMERICAN LIBRARY ASSOCIATION; ASSOCIATION OF COLLEGE AND RESEARCH LIBRARIES; ASSOCIATION OF RESEARCH LIBRARIES; PUBLIC KNOWLEDGE; NTCA THE RURAL BROADBAND ASSOCIATION; CTIA - THE WIRELESS ASSOCIATION; USTELECOM THE BROADBAND ASSOCIATION; INTERNET COMMERCE COALITION; INTELLECTUAL PROPERTY LAW PROFESSORS,

Amici Supporting Appellant,

and

NATIONAL MUSIC PUBLISHERS’ ASSOCIATION; NASHVILLE SONGWRITERS ASSOCIATION INTERNATIONAL; SONGWRITERS OF NORTH AMERICA; COPYRIGHT ALLIANCE,

Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:18-cv-00950-LO-JFA)

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Argued: March 9, 2022 Decided: February 20, 2024

Before HARRIS and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Senior Judge Floyd joined.

ARGUED: E. Joshua Rosenkranz, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, for Appellants. Catherine Emily Stetson, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees. ON BRIEF: Michael S. Elkin, Jennifer A. Golinveaux, Geoffrey P. Eaton, WINSTON & STRAWN LLP, New York, New York; Mark S. Davies, Sheila A. Baynes, Washington, D.C., Christopher J. Cariello, Rachel G. Shalev, Alexandra Bursak, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, for Appellants. Matthew J. Oppenheim, Scott A. Zebrak, Jeffrey M. Gould, OPPENHEIM + ZEBRAK, LLP, Washington, D.C.; Jo-Ann Tamila Sagar, Patrick C. Valencia, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees. Joseph C. Gratz, Samuel J. Zeitlin, DURIE TANGRI LLP, San Francisco, California, for Amicus Internet Association. Mitchell L. Stoltz, Corynne McSherry, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California; Erik Stallman, Juliana DeVries, Samuelson Law, Technology & Public Policy Clinic, UC BERKELEY SCHOOL OF LAW, Berkeley, California, for Amici Electronic Frontier Foundation, Center for Democracy and Technology, American Library Association, Association of College and Research Libraries, Association of Research Libraries, and Public Knowledge. David E. Weslow, Megan L. Brown, Ari S. Meltzer, Kevin G. Rupy, Adrienne J. Kosak, WILEY REIN LLP, Washington, D.C., for Amici NTCA – The Rural Broadband Association, CTIA – The Wireless Association, and USTelecom – The Broadband Association. Andrew L. Deutsch, DLA PIPER LLP (US), Los Angeles, California, for Amicus Internet Commerce Coalition. Phillip R. Malone, Juelsgaard Intellectual Property and Innovation Clinic, Mills Legal Clinic, STANFORD LAW SCHOOL, Stanford, California, for Amici Intellectual Property Law Professors. Danielle M. Aguirre, Kerry M. Mustico, Christopher A. Bates, NATIONAL MUSIC PUBLISHERS’ ASSOCIATION, Washington, D.C.; Ruthanne M. Deutsch, Hyland Hunt, Alexandra Mansbach, DEUTSCH HUNT PLLC, Washington, D.C., for Amici National Music Publishers’ Association, Nashville Songwriters Association International, and Songwriters of North America. Nancy Wolff, Sara Gates, COWAN DEBAETS ABRAHAMS & SHEPPARD LLP, New York, New York, for Amicus The Copyright Alliance.

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RUSHING, Circuit Judge:

Defendant Cox Communications sells internet, telephone, and cable television

service to 6 million homes and businesses across the United States. Plaintiffs—Sony

Music Entertainment and numerous other record companies and music publishers—own

some of the most popular copyrighted musical works of our time. Some users of Cox’s

internet service infringed Plaintiffs’ copyrights by downloading or distributing songs over

the internet without permission. Rather than sue those individuals, Plaintiffs sued Cox,

seeking to hold it responsible for its customers’ copyright infringement.

Federal law protects internet service providers from monetary liability for copyright

infringement committed by users of their networks, but only if those service providers

reasonably implement a policy to terminate repeat infringers in appropriate circumstances.

In a prior case, our Court held that Cox had failed to reasonably implement an anti-piracy

program and therefore did not qualify for the statutory safe harbor.

This case proceeded to trial on two theories of secondary liability: vicarious and

contributory copyright infringement. The jury found Cox liable for both willful

contributory and vicarious infringement of 10,017 copyrighted works owned by Plaintiffs

and awarded $1 billion in statutory damages. Cox appealed.

We affirm the jury’s finding of willful contributory infringement. But we reverse

the vicarious liability verdict and remand for a new trial on damages because Cox did not

profit from its subscribers’ acts of infringement, a legal prerequisite for vicarious liability.

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I.

Copyright owners possess the “exclusive rights” to “reproduce,” “distribute,”

“perform,” “display,” or “prepare derivative works based upon” their copyrighted works,

subject to limitations not relevant here. 17 U.S.C. § 106. Anyone who violates any of

these exclusive rights of the copyright owner is “an infringer of the copyright.” Id.

§ 501(a). A copyright owner may “institute an action” against an infringer, id. § 501(b),

and receive either statutory damages, id. § 504(a)(2), or actual damages plus the infringer’s

profits, id. § 504(a)(1). Although the Copyright Act “does not expressly render anyone

liable for infringement committed by another,” the Supreme Court has long held that

vicarious and contributory liability for copyright infringement rest on firm legal footing.

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434–435 (1984).

Congress recognized that internet service providers may get caught in the crossfire

when infringers use the internet to reproduce or distribute copyrighted works, so it created

a safe harbor defense in the Digital Millennium Copyright Act (DMCA). See 17 U.S.C.

§ 512. To be eligible for the defense, an internet service provider must have “adopted and

reasonably implemented . . . a policy that provides for the termination in appropriate

circumstances of subscribers and account holders of the service provider’s system or

network who are repeat infringers.” Id. § 512(i)(1)(A). This Court previously held that

Cox did not qualify for the safe harbor because its repeat infringer policy as implemented

was inadequate under the DMCA. See BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc.,

881 F.3d 293, 301–305 (4th Cir. 2018). The claim period in this case coincides with the

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period during which Cox was ineligible for the safe harbor, so Cox faces the secondary

liability claims here without that protection. 1

This lawsuit began when Sony and other owners of copyrighted musical works

(collectively, Sony or Plaintiffs) sued Cox for infringement committed by subscribers to

Cox’s internet service from 2013 to 2014. During the claim period, Cox provided internet

service to residential and commercial subscribers, charging different flat fees for different

download speeds according to a tiered pricing plan.

Plaintiffs are members of the Recording Industry Association of America (RIAA),

which hired the anti-piracy company MarkMonitor to catch infringements of its members’

copyrights on peer-to-peer networks using file-sharing protocols like BitTorrent and

others. See BMG, 881 F.3d at 298–299 (explaining peer-to-peer file sharing and

BitTorrent). When MarkMonitor discovered an internet user downloading or distributing

a copyrighted music file, it notified the user’s internet service provider. Only the service

provider can match an alleged infringer’s internet protocol address to its owner’s identity.

When Cox received infringement notices from MarkMonitor, Cox’s automated system sent

notices to the infringing subscribers. The notice Cox sent varied by how far along the

subscriber was in Cox’s thirteen-strike policy, ranging from an email warning to a

temporary suspension. See BMG, 881 F.3d at 299 (describing the thirteen-strike policy).

The DMCA safe harbor defense is not exclusive, so Cox remains “entitled to all 1

other arguments under the law” in its defense. CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 552 (4th Cir. 2004); see 17 U.S.C. § 512(l). 6 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 7 of 32

Over time, Cox developed various methods to stem the tidal wave of infringement

notices it was receiving and mitigate the consequences for its subscribers. It capped the

number of notices it would accept from RIAA, eventually holding it at 600 notices per day.

It took no action on the first DMCA complaint for each subscriber, limited the number of

account suspensions per day, and restarted the strike count for subscribers once it

terminated and reinstated them. MarkMonitor sent Cox 163,148 infringement notices

during the claim period. Over that time, Cox terminated 32 subscribers for violation of its

Acceptable Use Policy, which prohibits copyright infringement among other things. By

comparison, it terminated over 600,000 subscribers for nonpayment over that same time.

Frustrated with Cox’s lackluster response to the notices, Sony sued Cox for vicarious and

contributory copyright infringement.

After discovery, Sony and Cox cross-moved for summary judgment. Two of the

district court’s rulings at that stage are relevant for this appeal. First, the district court

concluded that the infringement notices MarkMonitor sent to Cox proved Cox’s knowledge

of infringement as a matter of law. That knowledge established one element of

contributory liability. Second, the district court denied Cox’s motion to reduce the number

of copyrighted works in suit. Cox argued that, for the purpose of statutory damages, all

songs included on a single album constitute one work, and a sound recording and the music

composition it embodies likewise count as a single work. See 17 U.S.C. § 504(c)(1)

(authorizing statutory damages for infringement “with respect to any one work” and

explaining that “all the parts of a compilation or derivative work constitute one work”).

The district court found that issues of material fact remained and so this claim should “be

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resolved at trial.” Sony Music Ent. v. Cox Commc’ns, Inc., 426 F. Supp. 3d. 217, 236 (E.D.

Va. 2019).

The parties presented their case to the jury over the course of twelve days. Plaintiffs

limited their case to Cox subscribers who received three or more infringement notices. In

the end, the jury found Cox liable for vicarious and contributory infringement of all 10,017

copyrighted works alleged. The jury also found that Cox’s infringement was willful, which

increased the available maximum statutory damages to $150,000 per work. See 17 U.S.C.

§ 504(c)(1)–(2). The jury awarded Sony $99,830.29 per infringed work, for a total of $1

billion in statutory damages.

After the verdict, Cox renewed its motion for judgment as a matter of law, which

the district court ultimately denied in full. Regarding liability, the district court rejected

Cox’s arguments that the evidence did not prove vicarious or contributory infringement.

Cox also sought again to reduce the number of works—and with it, damages—to account

for compilations and derivative works. The district court rejected Cox’s request as to

compilations but invited Cox to submit a calculation of the derivative works that were

allegedly double counted. After receiving Cox’s submission, however, the district court

denied any reduction in the number of works, reasoning that Cox’s posttrial arguments

required factfinding within the province of the jury and that Cox had failed to present

evidence sufficient to enable the jury to make the adjustments it requested.

Now on appeal, Cox raises numerous questions of law concerning the scope of

secondary liability for copyright infringement and what constitutes a compilation or

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derivative work in the internet age. Ultimately, we find we must answer only some of these

novel questions to resolve this appeal.

II.

We begin with Cox’s contention that the district court erred in denying it judgment

as a matter of law on Sony’s vicarious infringement claim. We review that ruling de novo.

Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 391 (4th Cir. 2014). Judgment

as a matter of law is proper if, viewing all evidence and reasonable inferences in the light

most favorable to the nonmoving party, “a reasonable jury would not have a legally

sufficient evidentiary basis to find for [that] party.” Fed. R. Civ. P. 50(a)(1). A district

court should grant judgment as a matter of law “if the nonmoving party failed to make a

showing on an essential element of his case with respect to which he had the burden of

proof.” Russell, 763 F.3d at 391 (internal quotation marks omitted).

A defendant may be held vicariously liable for a third party’s copyright

infringement if the defendant “[1] profits directly from the infringement and [2] has a right

and ability to supervise the direct infringer.” Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd., 545 U.S. 913, 930 n.9 (2005); see also CoStar Grp., Inc. v. LoopNet, Inc.,

373 F.3d 544, 550 (4th Cir. 2004) (“[A] defendant who ‘has the right and ability to

supervise the infringing activity and also has a direct financial interest in such activities’ is

[vicariously] liable.” (quoting Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443

F.2d 1159, 1162 (2d Cir. 1971))). Cox contests both elements on appeal. Because we

conclude Sony failed, as a matter of law, to prove that Cox profits directly from its

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subscribers’ copyright infringement, we do not reach the additional question of Cox’s right

and ability to supervise its subscribers.

Cox argues that it does not profit directly from its subscribers’ infringement because

“[a]ll subscribers pay Cox a flat monthly fee for their internet access package no matter

what they do online.” Opening Br. 27. Whether a subscriber uses her internet access for

lawful or unlawful purposes, Cox receives the same monthly fee, and a subscriber’s

decision to download or distribute a copyrighted song without permission does not benefit

Cox. The district court rejected this argument, concluding that Sony had proven Cox’s

direct financial interest by showing that Cox repeatedly declined to terminate the accounts

of infringing subscribers in order to continue collecting their monthly fees. To understand

this issue, some legal background is necessary.

Vicarious liability for copyright infringement is an “outgrowth of the agency

principles of respondeat superior.” Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259,

262 (9th Cir. 1996); see also A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th

Cir. 2001). It extends beyond a strict employer-employee relationship to other settings in

which a defendant similarly “‘has the right and ability to supervise the infringing activity

and also has a direct financial interest in such activities.’” Costar Grp., 373 F.3d at 550

(quoting Gershwin Pub. Corp., 443 F.2d at 1162). So, for example, we have held that a

property owner was vicariously liable for its closely related developer’s infringing use of

copyrighted architectural drawings in a construction project. Nelson-Salabes, Inc. v.

Morningside Dev., LLC, 284 F.3d 505, 513–514 (4th Cir. 2002). In addition to its control

over the project, the property owner had “an obvious and direct financial interest in the

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[developer’s] infringing activities” because the owner “enjoyed the benefit of any increase

in the Project’s value resulting from [the developer’s] infringement” of the copyrighted

drawings. Id. at 514. In another example, a company that sold nutritional supplements

was vicariously liable for its distributors’ infringing use of copyrighted photographs to

advertise its products because the company could control the distributors and stood to

benefit from increased sales spurred by the infringing advertisements. Leonard v. Stemtech

Int’l, Inc., 834 F.3d 376, 389 (3d Cir. 2016).

The landmark case on vicarious liability for infringing copyrighted musical

recordings is Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963).

There a department store was held accountable for the infringing sale of “bootleg” records

by a concessionaire operating in its stores. Id. at 307–308. The store retained the ultimate

right to supervise the concessionaire and its employees, demonstrating its control over the

infringement. And the store received a percentage of every record sale, “whether ‘bootleg’

or legitimate,” giving it “a most definite financial interest” in the infringing sales. 2 Id.

Courts have recognized, however, that a defendant may possess a financial interest

in a third party’s infringement of copyrighted music even absent a strict correlation

2 In an analysis that courts still use today, the Shapiro court contrasted two types of relationships: (1) landlords and tenants and (2) dance halls and bands. Shapiro, 316 F.2d at 307; see Sony, 464 U.S. at 437 n.18 (picking up this comparison); Leonard, 834 F.3d at 388–389 (same). A landlord is not vicariously liable for a tenant’s copyright infringement, the court explained, because he exercises no supervision over the tenant and charges a fixed rental fee regardless of whether the tenant infringes copyrights in the rented house. Shapiro, 316 F.2d at 307. But the dance hall proprietor who hires a band can control the premises, and the band’s infringing performances of copyrighted songs “provide the proprietor with a source of customers and enhanced income,” exposing him to vicarious liability. Id. 11 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 12 of 32

between each act of infringement and an added penny of profits. For example, Fonovisa

concerned the operator of a swap meet who allowed vendors to sell infringing records. The

complaint alleged that the operator collected “admission fees, concession stand sales and

parking fees”—but no sales commission—“from customers who want[ed] to buy the

counterfeit recordings at bargain basement prices.” Fonovisa, 76 F.3d at 263. These

allegations sufficed to state a direct financial benefit to the swap meet operator, the court

held, because “the sale of pirated recordings at the . . . swap meet [was] a ‘draw’ for

customers.” Id. The infringing sales “enhance[d] the attractiveness of the venue to

potential customers,” giving the swap meet operator a financial interest in the infringement

sufficient to state a claim for vicarious liability. Id.

Applying these principles to copyright infringement in cyberspace, courts and

Congress agree that “‘receiving a one-time set-up fee and flat periodic payments for

service’” from infringing and noninfringing users alike ordinarily “‘would not constitute

receiving a financial benefit directly attributable to the infringing activity.’” Ellison v.

Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004) (quoting S. Rep. 105-190, at 44 (1998)).

But “‘where the value of the service lies in providing access to infringing material,’” those

flat fees may constitute a direct financial benefit. Id. (quoting S. Rep. 105-190, at 45).

For example, the file-sharing service Napster had a direct financial interest in its

users’ exploitation of copyrighted music. An increasing volume of pirated music available

for download drew more users to register with Napster, and its “future revenue [was]

directly dependent upon increases in userbase.” Napster, 239 F.3d at 1023 (internal

quotation marks omitted).

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By contrast, America Online (AOL) was not vicariously liable for copyright

infringement occurring over an online forum to which it provided its subscribers access.

Although access to online forums encouraged overall subscription to AOL’s services, there

was no direct financial benefit from infringement where no evidence indicated “that AOL

customers either subscribed because of the available infringing material” or “canceled

subscriptions” when the material was no longer available. Ellison, 357 F.3d at 1079.

Without “evidence that AOL attracted or retained subscriptions because of the

infringement or lost subscriptions because of [its] eventual obstruction of the

infringement,” “no jury could reasonably conclude that AOL received a direct financial

benefit from providing access to the infringing material.” Id.

As these cases illustrate, the crux of the financial benefit inquiry is whether a causal

relationship exists between the infringing activity and a financial benefit to the defendant.

If copyright infringement draws customers to the defendant’s service or incentivizes them

to pay more for their service, that financial benefit may be profit from infringement. See,

e.g., EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 99 (2d Cir. 2016).

But in every case, the financial benefit to the defendant must flow directly from the third

party’s acts of infringement to establish vicarious liability. See Grokster, 545 U.S. at 930

& n.9; Nelson-Salabes, 284 F.3d at 513.

To prove vicarious liability, therefore, Sony had to show that Cox profited from its

subscribers’ infringing download and distribution of Plaintiffs’ copyrighted songs. It did

not.

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The district court thought it was enough that Cox repeatedly declined to terminate

infringing subscribers’ internet service in order to continue collecting their monthly fees.

Evidence showed that, when deciding whether to terminate a subscriber for repeat

infringement, Cox considered the subscriber’s monthly payments. See, e.g., J.A. 1499

(“This customer will likely fail again, but let’s give him one more chan[c]e. [H]e pays

317.63 a month.”). To the district court, this demonstrated the requisite connection

between the customers’ continued infringement and Cox’s financial gain.

We disagree. The continued payment of monthly fees for internet service, even by

repeat infringers, was not a financial benefit flowing directly from the copyright

infringement itself. As Cox points out, subscribers paid a flat monthly fee for their internet

access no matter what they did online. Indeed, Cox would receive the same monthly fees

even if all of its subscribers stopped infringing. Cox’s financial interest in retaining

subscriptions to its internet service did not give it a financial interest in its subscribers’

myriad online activities, whether acts of copyright infringement or any other unlawful acts.

An internet service provider would necessarily lose money if it canceled subscriptions, but

that demonstrates only that the service provider profits directly from the sale of internet

access. Vicarious liability, on the other hand, demands proof that the defendant profits

directly from the acts of infringement for which it is being held accountable.

Sony responds that, even if we disagree with the district court, the jury heard other

evidence of Cox’s direct financial interest in its subscribers’ copyright infringement. But

none of Sony’s alternative theories supports vicarious liability here.

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First, Sony contends that the jury could infer from the volume of infringing activity

on Cox’s network that the ability to infringe was a draw for customers. In support, Sony

highlights evidence that roughly 13% of Cox’s network traffic was attributable to peer-to-

peer activity and over 99% of peer-to-peer usage was infringing. Even if the jury believed

Sony’s characterization that this was a high volume of infringing activity in general, the

evidence falls considerably short of demonstrating that customers were drawn to purchase

Cox’s internet service, or continued to use that service, because it offered them the ability

to infringe Plaintiffs’ copyrights. Cf. Ellison, 357 F.3d at 1079. Many activities of modern

life demand internet service. No one disputes that Cox’s subscribers need the internet for

countless reasons, whether or not they can infringe. Sony has not identified evidence that

any infringing subscribers purchased internet access because it enabled them to infringe

copyrighted music. Nor does any evidence suggest that customers chose Cox’s internet

service, as opposed to a competitor’s, because of any knowledge or expectation about

Cox’s lenient response to infringement.

Second, Sony asserts that “subscribers were willing to pay more for the ability to

infringe,” but the evidence does not go nearly so far. Response Br. 36. Cox had a tiered

pricing structure by which it charged customers higher monthly fees for increased data

allowances. According to Sony, peer-to-peer activity is “bandwidth-intensive,” “more data

usage requires more speed,” and Cox advertised its network speeds in relation to how

quickly a user could download songs. Response Br. 37. Further, Sony explains,

“residential subscribers who were the subject of 20 or more infringement notices from 2012

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[to] 2014 paid Cox more per month, on average, than residential subscribers who were the

subject of only 1 or 2 infringement notices.” Response Br. 34.

None of this raises a reasonable inference that any Cox subscriber paid more for

faster internet in order to engage in copyright infringement. As Sony’s expert testified,

other data intensive activities include legally streaming movies, television shows, and

music, as well as playing video games. Subscribers may have purchased high speed

internet for lawful streaming and downloads or because their households had many internet

users; Sony’s expert didn’t claim to know why any customer purchased a higher tier of

service. Sony has not identified any evidence that customers were attracted to Cox’s

internet service or paid higher monthly fees because of the opportunity to infringe

Plaintiffs’ copyrights.

At bottom, Sony offered no legally adequate theory to establish the required causal

connection between subscribers’ copyright infringement and increased revenue to Cox.

While Cox profited from the sale of internet service, Sony has not shown that Cox, in any

sense, had a financial interest in its subscribers committing infringement. See Costar Grp.,

373 F.3d at 550. And it is the infringement itself that must in some fashion profit the

defendant for vicarious liability to attach. Accordingly, under the correct legal standard,

no reasonable jury could find that Cox received a direct financial benefit from its

subscribers’ infringement of Plaintiffs’ copyrights. We therefore conclude that Cox is not

vicariously liable for its subscribers’ copyright infringement and reverse the district court’s

denial of Cox’s motion for judgment as a matter of law.

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III.

We turn next to contributory infringement. Under this theory, “‘one who, with

knowledge of the infringing activity, induces, causes or materially contributes to the

infringing conduct of another’ is liable for the infringement, too.” CoStar Grp., 373 F.3d

at 550 (quoting Gershwin Pub., 443 F.2d at 1162). The district court resolved the question

of Cox’s knowledge on summary judgment, while the jury found material contribution at

trial, so we address Cox’s challenge to each element separately.

A.

We review the district court’s grant of summary judgment de novo, applying the

same standard the district court was required to apply. See Variety Stores, Inc. v. Wal-Mart

Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). Summary judgment is appropriate when

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

Our Court has recently clarified the intent necessary to prove contributory

infringement by an internet service provider based on its subscribers’ direct infringement.

In BMG Rights Management v. Cox Communications, we held that intent to cause

infringement may be shown by willful blindness—which is not at issue in this appeal—or

by “know[ledge] that infringement [was] substantially certain to result from the sale” of

internet service to a customer. 881 F.3d at 307. General knowledge of infringement

occurring on the defendant’s network is not enough; “[s]elling a product with both lawful

and unlawful uses suggests an intent to cause infringement only if the seller knows of

specific instances of infringement.” Id. at 311. Applying these principles to Cox in that

17 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 18 of 32

case, we held that Cox could not be contributorily liable absent “knowledge that

infringement [was] substantially certain to result from Cox’s continued provision of

Internet access to particular subscribers.” Id.

As BMG suggests, in this scenario, knowledge that particular subscribers are

substantially certain to infringe is a predictive question. We reasoned in BMG that

knowledge of past infringement is relevant to proving this element. See id. at 308. Here,

Cox produced data purporting to show the effectiveness of each step of its thirteen-strike

policy at reducing future infringement, which could also be relevant. And Sony highlights

internal emails implying that Cox continued providing internet service to certain habitual

infringers despite believing they would infringe again. A jury could consider this and other

evidence to determine whether, when Cox continued providing internet service to

customers receiving three or more infringement notices, it knew they were substantially

certain to infringe Plaintiffs’ copyrights by, for example, downloading another song or

distributing a song they had previously downloaded.

Cox argues that the district court erred by taking this factual determination away

from the jury and deciding as a matter of law that notices of past infringement established

Cox’s knowledge that subscribers were substantially certain to infringe in the future.

Unfortunately, Cox did not make any argument of this ilk to the district court when

opposing summary judgment on the knowledge element. Instead, Cox’s opposition to

Sony’s motion for summary judgment on knowledge focused exclusively on the adequacy

of the infringement notices from MarkMonitor. Cox argued that the notices lacked

information, that the notices were too vague to notify Cox of infringement of specific

18 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 19 of 32

copyrighted works by specific internet users, and that Sony needed additional evidence

beyond the notices to prove that those infringements occurred.

In the district court, all parties (and the court itself) appear to have proceeded on the

assumption that knowledge of subscribers’ past infringement sufficed to prove this element

of contributory liability. Addressing the arguments Cox actually made, the district court

concluded that the infringement notices from MarkMonitor were sufficiently detailed to

notify Cox of specific instances of infringement. 3 And based on Cox’s knowledge of those

notices, the court concluded that Sony had established the knowledge element of

contributory liability as a matter of law.

Cox did not argue to the district court, as it does now on appeal, that notices of past

infringement failed to establish its knowledge that the same subscriber was substantially

certain to infringe again. Cox cites certain pages of its memorandum opposing Sony’s

motion for summary judgment where it claims to have preserved this argument. But no

arguable interpretation of those pages or their context reveals any theory like the one Cox

advances on appeal. In the district court, Cox contested the sufficiency of the infringement

notices to prove Cox’s knowledge of the past infringements alleged therein. On appeal,

Cox argues that its knowledge of past infringements “does not prove Cox knew ex ante that

the same subscriber was ‘substantially certain’ to infringe again.” Opening Br. 38

(emphasis added). “These are different arguments entirely, and making the one does not

3 To the extent Cox suggests that disputes about the information in particular infringement notices independently warrant vacatur of summary judgment, we agree with the district court that these disputes are immaterial. 19 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 20 of 32

preserve the other.” Laber v. Harvey, 438 F.3d 404, 428 n.24 (4th Cir. 2006). Indeed, Cox

did not even mention the “substantially certain” standard anywhere in its memorandum

opposing summary judgment. Cf. Opening Br. 38 (Cox faulting the district court for not

mentioning this “requirement” in its opinion).

Because Cox did not press this argument in the district court, it is forfeited for

appeal. “Arguments raised in a trial court must be specific and in line with those raised on

appeal.” In re Under Seal, 749 F.3d 276, 287 (4th Cir. 2014). “[A]n objection on one

ground does not preserve objections based on different grounds.” Id. (internal quotation

marks omitted); see also, e.g., United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)

(“To preserve an argument on appeal, the defendant must object on the same basis below

as he contends is error on appeal.”); United States v. Banisadr Bldg. Joint Venture, 65 F.3d

374, 379 (4th Cir. 1995) (“[A] theory not raised at trial cannot be raised on appeal.”).

“Absent exceptional circumstances, . . . we do not consider issues raised for the first

time on appeal.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009);

see also Agra, Gill & Duffus, Inc. v. Benson, 920 F.2d 1173, 1176 (4th Cir. 1990) (“We

will not accept on appeal theories that were not raised in the district court except under

unusual circumstances.”). Cox does not contend that any such circumstances exist here,

nor does Cox make any effort to show “fundamental error or a denial of fundamental

justice.” In re Under Seal, 749 F.3d at 285 (internal quotation marks omitted); see id. at

292 (finding that appellant abandoned any argument for overlooking forfeiture by failing

to brief it). Consequently, we decline to consider Cox’s new argument on appeal.

20 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 21 of 32

B.

Moving to the material contribution element of contributory liability, Cox appeals

the district court’s denial of its renewed motion for judgment as a matter of law. We review

that denial de novo and must affirm if, “viewing the facts in the light most favorable to the

non-moving party, there is sufficient evidence for a reasonable jury to have found in the

non-moving party’s favor.” First Union Com. Corp. v. GATX Cap. Corp., 411 F.3d 551,

556 (4th Cir. 2005) (internal quotation marks and brackets omitted); see Fed. R. Civ. P.

50(a)(1). We may not weigh evidence or judge the credibility of witnesses. See First

Union Com. Corp., 411 F.3d at 556.

The district court declined to disturb the jury’s contributory liability verdict because

sufficient evidence supported a finding that Cox materially contributed to its subscribers’

direct infringement of Plaintiffs’ copyrights. 4 As the court explained, Cox’s internet

service “was indispensable to each instance of [peer-to-peer] infringement on its network.”

Sony Music Ent. v. Cox Commc’ns, Inc., 464 F. Supp. 3d 795, 816 (E.D. Va. 2020). And,

considering the evidence in the light most favorable to Plaintiffs, a reasonable jury could

have found that Cox provided that service “with actual knowledge” of infringement

occurring “on specific subscribers’ accounts,” yet “fail[ed] to address” that infringement

occurring on its network. Id.

Cox makes two principal objections. The first rests on the contention that it cannot

be liable for materially contributing to copyright infringement because the internet service

4 The jury instruction asked if Cox “induced, caused, or materially contributed to the infringing activity,” J.A. 801, but only material contribution is before us on appeal. 21 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 22 of 32

it provides is capable of substantial lawful use and not designed to promote infringement.

We rejected that argument in BMG: “In fact, providing a product with ‘substantial non-

infringing uses’ can constitute a material contribution to copyright infringement.” 881

F.3d at 306. As we explained there, “Grokster makes clear that what matters is not simply

whether the product has some or even many non-infringing uses, but whether the product

is distributed with the intent to cause copyright infringement.” Id. Accordingly, Cox’s

concern that businesses “would be automatically liable for providing any product or service

with knowledge that some small set of customers may use it, in part, to infringe” is

misplaced. Opening Br. 45.

Second and similarly, Cox claims its contribution must “amount[] to culpable

conduct equivalent to aiding and abetting the infringement,” Opening Br. 43 (internal

quotation marks and ellipsis omitted), and that “failing to prevent” its subscribers’

infringement does not suffice, Opening Br. 46. This argument ignores the evidence before

the jury.

It is true that “mere[] . . . failure to take affirmative steps to prevent infringement”

does not establish contributory liability “in the absence of other evidence of intent.”

Grokster, 545 U.S. at 939 n.12. But supplying a product with knowledge that the recipient

will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for

contributory infringement. For example, in BMG we reasoned that leasing a VCR to a

customer—innocent conduct by itself—can support contributory liability if the lessor

knows the customer is substantially certain to use it for copyright infringement. See BMG,

881 F.3d at 308. In such a situation, providing the means to infringe is culpable pursuant

22 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 23 of 32

to the common law rule that a person is presumed to intend the substantially certain results

of his acts. See id. at 307. This accords with principles of aiding and abetting liability in

the criminal law. Lending a friend a hammer is innocent conduct; doing so with knowledge

that the friend will use it to break into a credit union ATM supports a conviction for aiding

and abetting bank larceny. See United States v. Thompson, 539 Fed. App. 778, 779 (9th

Cir. 2013); United States v. Thompson, 728 F.3d 1011, 1013 (9th Cir. 2013).

The evidence at trial, viewed in the light most favorable to Sony, showed more than

mere failure to prevent infringement. The jury saw evidence that Cox knew of specific

instances of repeat copyright infringement occurring on its network, that Cox traced those

instances to specific users, and that Cox chose to continue providing monthly internet

access to those users despite believing the online infringement would continue because it

wanted to avoid losing revenue. Sony presented extensive evidence about Cox’s

increasingly liberal policies and procedures for responding to reported infringement on its

network, which Sony characterized as ensuring that infringement would recur. And the

jury reasonably could have interpreted internal Cox emails and chats as displaying

contempt for laws intended to curb online infringement. To be sure, Cox’s anti-

infringement efforts and its claimed success at deterring repeat infringement are also in the

record. But we do not weigh the evidence at this juncture. The evidence was sufficient to

support a finding that Cox materially contributed to copyright infringement occurring on

its network and that its conduct was culpable. Therefore we may not disturb the jury’s

verdict finding Cox liable for contributory copyright infringement.

23 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 24 of 32

IV.

Having reversed on one theory of liability and affirmed on the other, we now must

address the scope of the vacatur and proceedings on remand. We conclude that reversal of

the vicarious infringement verdict warrants vacatur of the damages award and remand for

a new trial on damages. But we see no reason to vacate the contributory infringement

verdict, nor will we direct the district court to enter judgment on any part of the now-

vacated statutory damages verdict.

When a jury returns a special verdict form finding two bases for liability but a

general damages verdict that does “not apportion damages between the claims,” reversal

of one theory of liability on appeal typically requires “a new trial . . . on the damages issue.”

Barber v. Whirlpool Corp., 34 F.3d 1268, 1278 (4th Cir. 1994). Only “where it is

reasonably certain that the jury was not significantly influenced by issues erroneously

submitted to it” is vacatur of the general damages award unnecessary. Tire Eng’g &

Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 314 (4th Cir. 2012)

(internal quotation marks omitted).

We lack sufficient confidence that the jury’s vicarious liability verdict here did not

materially influence its statutory damages award. The $1 billion award was a “global

figure” for all infringements in the case. Barber, 34 F.3d at 1278. Although the vicarious

and contributory infringement claims were predicated on the same conduct and the

maximum damages for each is identical, the statutory range is wide and the jury’s choice

within it is highly discretionary and may have been influenced by the vicarious

24 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 25 of 32

infringement verdict. See 17 U.S.C. § 504(c)(1), (2) (authorizing a “just” award between

$750 and $150,000 per work for willful infringement). Unlike actual damages, statutory

damages are not tethered to concrete figures like lost profits or incurred expenses. To the

contrary, the jury was instructed to award an amount it found “fair under the

circumstances,” taking into consideration factors such as “[t]he profits Cox earned because

of the infringement,” “[t]he expenses Cox saved because of the infringement,” “[t]he

circumstances of the infringement,” and “the need to punish Cox,” among others. J.A. 803.

We have reversed the vicarious liability verdict because Cox did not directly profit from

its subscribers’ infringement. Without that legally erroneous finding, the jury’s assessment

of at least these damages factors may be different. Given the jury’s wide discretion in

assessing the appropriate damages and its legally erroneous finding that Cox had a direct

financial interest in its subscribers’ infringement, we are not “reasonably certain that the

jury was not significantly influenced” in its statutory damages award by its finding of

vicarious liability. Tire Eng’g, 682 F.3d at 314 (internal quotation marks omitted). We

therefore vacate the damages award and remand for a new trial on damages.

Cox urges us to vacate not just the damages award but also the contributory liability

verdict because, in its view, the two types of secondary liability are intertwined. We don’t

see much to support Cox’s unadorned claim that a wrong conclusion on direct financial

interest in subscriber infringement would significantly influence the jury’s finding on

material contribution to infringement. Accordingly, we decline to vacate the contributory

infringement verdict on this ground.

25 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 26 of 32

C.

Finally, Cox argues that, even if we remand the case for a new trial on damages, we

should direct the district court to enter judgment in Cox’s favor as to certain copyrighted

works that Cox claims cannot be used to calculate statutory damages. Cox renewed its

motion for judgment as a matter of law on this ground after trial, and the district court

denied relief. Even though we have vacated the entire damages determination, we address

this issue because if Cox were right, it would be entitled to exclude a number of works

from consideration for statutory damages and would not have to prove the status of those

works to the jury at retrial.

The Copyright Act authorizes an award of statutory damages within a certain dollar

range “for all infringements involved in the action, with respect to any one work” and

specifies that, “[f]or the purposes of this subsection, all the parts of a compilation or

derivative work constitute one work.” 5 17 U.S.C. § 504(c)(1). “Although parts of a

compilation or derivative work may be regarded as independent works for other purposes,

for purposes of statutory damages, they constitute one work.” Xoom, Inc. v. Imageline,

Inc., 323 F.3d 279, 285 (4th Cir. 2003) (internal quotation marks omitted), abrogated on

other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). It is undisputed

on appeal that Cox’s subscribers infringed 10,017 copyrighted works owned by Plaintiffs.

But Cox contends that many of those works cannot properly be the subject of separate

5 The range depends on whether the infringement was willful. Non-willful infringement results in a statutory damages range of $750 to $30,000 per work, whereas for willful infringement the upper limit increases to $150,000. 17 U.S.C. § 504(c)(1), (2). 26 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 27 of 32

statutory damages awards because they are part of a compilation or derivative work.

Specifically, Cox claims that the number of compensable works was inflated in two ways:

(1) by counting both musical compositions and their derivative sound recordings, and

(2) by counting individual sound recordings that were compiled in a single album.

A “derivative work” is “a work based upon one or more preexisting works, such as

a . . . sound recording[.]” 17 U.S.C. § 101. The copyrighted works in this case include

sound recordings and musical compositions, some of which overlap. In other words, some

of the copyrighted recordings are performances of the copyrighted compositions.

Throughout this litigation, Cox has maintained that Plaintiffs cannot collect statutory

damages for infringement of both a copyrighted musical composition and its derivative

sound recording. See 17 U.S.C. § 504(c)(1).

A “compilation” is “a work formed by the collection and assembling of preexisting

materials or of data that are selected, coordinated, or arranged in such a way that the

resulting work as a whole constitutes an original work of authorship. The term

‘compilation’ includes [a] collective work[],” which is “a work, such as a periodical issue,

anthology, or encyclopedia, in which a number of contributions, constituting separate and

independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101.

In Cox’s view, a musical album is a compilation, and because “all the parts of a compilation

. . . constitute one work” for purposes of statutory damages and some of the infringed songs

were included on albums together, Plaintiffs were limited to one statutory damages award

per album, not one per song. 17 U.S.C. § 504(c)(1).

27 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 28 of 32

Whether any of the works in this case are derivative or part of a compilation is a

mixed question of law and fact. See Bryant v. Media Right Prods., 603 F.3d 135, 140 (2d

Cir. 2010); Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1116 (1st Cir. 1993).

The subsidiary legal questions were for the district court to resolve, and the factual

questions were for the jury to decide. See Feltner v. Columbia Pictures Television, Inc.,

523 U.S. 340, 355 (1998) (“[T]he Seventh Amendment provides a right to a jury trial on

all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act,

including the amount itself.”); cf. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199–

1200 (2021) (explaining mixed questions of law and fact).

Before and during trial, the parties were aware of the need for evidence to identify

the alleged derivative works and compilations among the 10,017 copyrighted works at

issue. Pretrial, the district court denied Cox’s motion for summary judgment on the topics,

observing that issues of material fact remained. At various points during the trial, Cox

acknowledged its obligation to put forth evidence identifying the derivative works and

compilations and forecasted that it would do so through requests for admissions, answers

to interrogatories, deposition testimony, certificates of registration, or expert testimony.

But it did not, and pertinent testimony from Cox’s expert witness was excluded from

evidence as beyond the bounds of his expert report and disclosures. 6 Having heard no

6 Cox does not appeal this evidentiary ruling. 28 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 29 of 32

evidence or argument about the number of derivative works or compilations, the jury

returned a statutory damages award for each of the 10,017 copyrighted works infringed. 7

After trial, Cox asked the district court to reduce the damages award to account for

derivative works and compilations. The court declined, and we review its judgment de

novo. See First Union Com. Corp., 411 F.3d at 556.

1.

Regarding derivative works, the district court agreed with Cox on the legal question,

ruling that Plaintiffs were entitled to only one statutory damages award, not two, for

infringement of a musical composition and its derivative sound recording. 8 But on the

factual question, the court concluded that Cox had not presented evidence from which the

jury could determine which recordings and compositions overlapped.

In support of its posttrial motion, Cox created three schedules identifying the works

that it claimed overlapped and those that did not. To do so, Cox consulted two trial

exhibits—PX1, which listed the infringed sound recordings, and PX2, which listed the

infringed musical compositions—and the works’ copyright registration certificates, some

but not all of which were in evidence. Cox compared information from these sources,

including the title of the work, artist, album, publication date, and ownership information,

7 Cox does not challenge the jury instructions or verdict form on appeal. 8 Sony challenges that ruling on appeal as an alternative basis for affirmance. Because we affirm on the ground Cox raised, we need not address Sony’s alternative argument. 29 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 30 of 32

to make judgment calls about whether a particular sound recording and musical

composition overlapped.

As the district court realized, this additional information necessary for

distinguishing derivative from non-derivative works had not been presented to the jury.

Even if the jury had been asked to comb through the thousands of entries on PX1 and PX2,

that comparison alone would not have enabled it to determine which entries were derivative

of each other, as demonstrated by Cox’s posttrial submissions. The court therefore

correctly concluded that it could not use the new analysis in Cox’s posttrial schedules to

decide which works were derivative and reduce the damages award. As the court

explained, “Cox did not provide the information to the jury that it has provided to the

[c]ourt in its post-trial brief,” and “[t]he jury answered that question [about statutory

damages] with the information available” at trial. Sony Music Ent. v. Cox Commc’ns, Inc.,

No. 1:18-cv-00950, 2021 WL 1254683, at *3 (E.D. Va. Jan. 12, 2021).

Cox now argues, based on the information it presented to the district court after trial,

that the jury’s verdict was unjust because 2,235 sound recordings are undisputedly

derivative works. But like the district court when deciding the Rule 50 motion, we must

assess the verdict based on the evidence before the jury, not Cox’s efforts to supplement

the record after trial. See 9B Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2529 (3d ed. & Supp. 2023) (“Rule 50 motions must be considered in light of

the evidence presented at trial.”). Because the evidence at trial supported the jury’s verdict,

we affirm the district court’s denial of judgment as a matter of law.

30 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 31 of 32

2.

As for compilations, Cox contends that Plaintiffs were not entitled to separate

statutory damages awards for songs that were contained on the same album. We need not

decide whether Cox’s legal premise is sound because, even assuming it is for the sake of

argument, Cox does not identify evidence from which the jury could have determined

which songs were released on albums together. 9

Nowhere in its briefing does Cox identify evidence it presented to the jury about

whether infringed works were contained on albums. Neither PX-1 (the list of infringed

sound recordings) nor PX-2 (the list of infringed compositions) mentions the album

information for any work. To bridge this gap, Cox relies on the summary judgment record,

citing deposition testimony and the supposed absence of dispute at that stage about certain

facts. But we see no indication this evidence was presented to the jury, and our focus when

reviewing the district court’s Rule 50 ruling must be the record created at trial. See Fed.

R. Civ. P. 50(a)(1); Ortiz v. Jordan, 562 U.S. 180, 184 (2011) (“Once the case proceeds to

trial, the full record developed in court supersedes the record existing at the time of the

summary-judgment motion.”). Accordingly, we affirm the district court’s denial of

judgment as a matter of law on compilations too.

9 The district court rejected Cox’s legal theory. It instead followed the reasoning of the Second Circuit in EMI Christian, which “allowed separate statutory damages awards for songs that the plaintiffs issued as singles, even if those songs were also made available on albums.” 844 F.3d at 101. Other circuits have applied a third approach—the “independent economic value test”—to determine whether a copyrighted work is part of a compilation subject to only one statutory damages award. See, e.g., Sullivan v. Flora, Inc., 936 F.3d 562, 570–572 (7th Cir. 2019). We need not delve into these conflicting interpretations of the Copyright Act to resolve this appeal. 31 USCA4 Appeal: 21-1168 Doc: 92 Filed: 02/20/2024 Pg: 32 of 32

For the foregoing reasons, we reverse the district court’s order denying Cox

judgment as a matter of law on Sony’s claim of vicarious copyright infringement. We

affirm the district court’s orders denying Cox relief from the jury’s contributory

infringement verdict and denying judgment as a matter of law regarding the number of

derivative works and compilations. Given our reversal of the vicarious liability verdict,

we also vacate the damages award and remand for a new trial on the amount of statutory

damages to be awarded.

SO ORDERED