Michael Elkin got the call on Dec. 1, 2015. Cox Communications was about to go to trial in a high-stakes digital copyright case in Virginia, and a key pretrial ruling had just gone south.

Elkin began assembling an appellate team, and it would be needed. Within a couple of weeks Cox, represented by different counsel at the trial, would be hit with a $25 million verdict. The trial judge would later tack on $8 million in attorneys fees.

Now Elkin and Winston have persuaded the U.S. Court of Appeals for the Fourth Circuit that Cox deserves a second chance before a new jury–with a higher standard of liability. For winning this showdown with the music and recording industry, Elkin is our Litigator of the Week.

Music owner BMG Rights Management sued Cox, one of the country's largest internet service providers, in 2014. Represented by Steptoe & Johnson LLP, BMG accused Cox of permitting widespread sharing of copyrighted works by subscribers using the BitTorrent protocol. The Digital Millennium Copyright Act confers a safe harbor on ISPs, but U.S. District Judge Liam O'Grady ruled just before trial that Cox could not invoke it because it had not enforced its own policy against repeat copyright infringers.

These issues aren't new to Elkin. We recognized him for a groundbreaking 2011 appellate decision on DMCA safe harbors.

When he went through the trial record in BMG Rights Management v. Cox Communications, Elkin says he found no evidence that Cox had actual knowledge of specific acts of infringement of BMG works. And jurors had been instructed that they could find contributory infringement if Cox was merely negligent.

Cox “would had to have intentionally turned a blind eye to specific acts of infringement” to be liable, Elkin said. “And that was not the instruction that was given.”

Fourth Circuit Judge Diana Gribbon Motz suggested in her Feb. 1 opinion that this was a close call. She wrote that a negligence standard is “not without support” in the caselaw, citing no less than a Richard Posner opinion. But Cox's arguments carried the day. “We believe for several reasons, that, as Cox contends, negligence does not suffice to prove contributory infringement; rather, at least willful blindness is required,” Motz wrote for the unanimous panel.

That was enough for a new trial, which Elkin and his team expect to try this time around. But they'll still have to fly without the protection of the DMCA safe harbor. The Fourth Circuit left O'Grady's pretrial ruling intact.

Elkin said he worked closely with Winston partners Thomas Lane, Jennifer Golinveaux and Steffen Johnson on the appeal. He singled out Johnson, the vice-chair of the firm's appellate group, for drafting the briefs. “We all worked on them, we all drafted them,” Elkin says. “But his expertise helped us considerably.”

Cox also benefited from the support of nine different amici curiae, he added. They included the American Cable Association, the Consumer Technology Association and Public Knowledge.