BMG, Cox Clashing Over Stay in Costs in Torrent Piracy Suit

BMG's opposition to a stay on consideration of its fee petition and application for costs until after Cox Communications' appeal rests on the shaky assumption that a multimillion dollar fee award for BMG is a foregone conclusion, Cox said in a reply brief (in Pacer) Tuesday in U.S. District Court in Alexandria, Virginia. It supported Cox's motion (in Pacer) earlier this month to defer consideration of any motions for awards of fees and expenses until after the judgment is appealed by the cable ISP. "A fee award is never 'automatic' and requires more than the prevailing party's self-righteous assertions," Cox said, saying it plans to present "substantial questions" in its appeal of a torrent piracy ruling against it to the 4th U.S. Circuit Court of Appeals (see 1608190030), and those could be grounds for vacating and reversing the judgment. In its reply brief, Cox said the preponderance of novel issues justifies deferring consideration of fee issues until after its appeal, while the jury's willfulness finding can't be used as a proxy for finding malice or bad faith on the company's part and thus isn't a strong factor in any fee analysis. Cox said the $25 million jury award in statutory damages, and an additional award of fees for purposes of deterrence or compensation would be "a windfall double-recovery" and, contrary to BMG claims otherwise, "there is no such ‘standard practice’” for deciding claims for attorney's fees and costs promptly. BMG, in opposition (in Pacer) filed last week, said Cox's motion would stick the 4th Circuit "with piecemeal appeals and ... drag out this litigation for years." BMG said the case for attorney's fees "is overwhelming" due to Cox's willful infringement of BMG copyright, its "host of unreasonable litigation positions" and its having driven up the costs of the litigation "through massive discovery obstructionism.”