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Sony Music Entertainment v. Cox Communications, Inc.

United States District Court, E.D. Virginia, Alexandria Division

November 19, 2018

COX COMMUNICATIONS, INC., et al., Defendants.


          Liam O'Grady Judge

         This matter comes before the Court on Defendant's Motion to Change Venue Pursuant to 29 U.S.C. § 1404. Dkt. No. 22. For the following reasons, the Court denies the motion.

         I. Background

         Plaintiffs, fifty-seven entertainment companies, have filed a Complaint alleging that Defendants, internet service providers, have contributorily and vicariously infringed upon Plaintiffs' copyrights. This alleged contributory and vicarious infringement stems from instances in which Defendants' customers illegally downloaded songs to which Plaintiffs own the copyrights.

         Defendants seek to transfer this case to the Northern District of Georgia. None of the Plaintiffs are domiciled in the Eastern District of Virginia. Neither are the Defendants. Seven of ten witnesses the Defendants have identified as critical to their case - as well as Defendants themselves - are at home in the Northern District of Georgia.

         The instant case is not the first in which Defendants have come before this Court. In November 2014 different plaintiffs filed a complaint alleging contributory and vicarious infringement of copyrights. BMG Rights Mgmt. et al. v. Cox Comms., Inc. el al., 1:14-cv-1611. In the course of that litigation, which lasted over a year, and culminated in a jury finding Defendants liable, this court issued dozens of orders, including a forty-five page summary judgment opinion. At no point did Defendants move to transfer venue. The Fourth Circuit reviewed this Court's summary judgment opinion, upholding this Court's ruling precluding Defendants from asserting a safe harbor defense under the DMCA, but remanding the case for a new trial based on an error in the jury instructions given. BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., 881 F.3d 293, 314 (4th Cir. 2018).

         II. Legal Standard

         A district court may transfer a civil action to any other district where the action could have been brought "[f]or the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). "The decision whether to transfer an action under the statute is committed to the sound discretion of the district court." Heinz Kettler GMBH & Co. v. Razor USA, LLC, 750 F.Supp.2d 660, 667 (E.D. Va. 2010) (citation omitted). District courts determining whether to grant a motion to transfer under § 1404(a) usually consider the following factors: "(1) plaintiffs choice of forum; (2) convenience of the parties; (3) witness convenience and access; and (4) the interest of justice." Id. The movant bears the burden of showing that the circumstances of the case weigh strongly in favor of transfer. Id. Because the statute gives no guidance regarding the weight to give each factor it is a fact intensive inquiry and depends on the circumstances in each case. SamsungElecs. Co. v. Rambus, Inc., 386 F.Supp.2d 708, 716 (E.D. Va. 2005).

         III. Analysis

         In considering the factors relevant to a venue transfer this Court finds the first factor, plaintiffs choice of forum, weighs slightly in favor of Plaintiffs. The second factor, convenience of the parties and witnesses, weighs slightly in favor of Defendants. The third factor, the interest of justice, weighs heavily in favor of Plaintiffs.

         A. Plaintiff's Choice of Forum

         Typically, plaintiffs choice of forum is entitled to substantial weight. Id. A plaintiffs choice of forum will not be entitled to substantial weight if plaintiff has chosen a foreign forum and the cause of action bears little or no relation to that forum. Id. "But, even then, the plaintiffs choice of forum is certainly a relevant consideration so long as there is a connection between the forum and the plaintiffs claim that reasonably and logically supports the plaintiffs decision to bring the case in the chosen forum." Id.

         Use of an infringing product in the chosen forum alone is not necessarily enough to tip this factor in a plaintiffs favor. See Advanced Mktg. Sys., LLC v. Delhaize Am., LLC, No. 2;I5CV74, 2015 WL 12806533, at *3 (E.D. Va. July 31, 2015); Lycos, Inc. v. Tivo, Inc., 499 F.Supp.2d 685, 696 (E.D. Va. 2007). In those cases it is important to look to (1) whether the infringing use in the chosen forum was unique as compared to the infringing use in other forums, and (2) whether those who exercised control over the infringing products or devices were located in the chosen forum. See Advanced Mktg. Sys., LLC, 2015 WL 12806533, at *3; Lycos, Inc., 499 F.Supp.2d at 696 ("The acts relevant to this lawsuit... are those of the defendants, not their customers and subscribers. The design and manufacture of the allegedly infringing products, as well as the design and development of the purportedly infringing online services, occurred outside of Virginia.").

         Here, none of the Plaintiffs are at home in the Eastern District of Virginia. Therefore, this factor will only be given substantial weight if a significant ...

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