November 24, 2015
U.S. District Judge Liam O’Grady ruled that Cox Communications is not, as it claimed, a mere conduit for those who infringe copyrights but instead has liability for not implementing a repeat-infringer policy. The suit originated with BMG Rights Management and Round Hill Music, which both sought the help of Rightscorp, a company that tracks down online pirates and, controversially, demands they pay up or face lawsuits. Cox had asserted that Rightscorp’s demands were unreasonable and did not cooperate.
The Hollywood Reporter notes that, “many big ISPs including Comcast and Time Warner Cable have mostly facilitated content owners and their agents, through joint programs like the ‘Copyright Alert System’ or through court subpoenas.” Cox, however, took the perspective that its procedure — a “graduated response” system for handling infringements — was sufficient and accused Rightscorp and plaintiffs of trying to abuse Cox’s system.
Rightscorp, says THR, continued to dump “thousands of notices per day on Cox,” leading the ISP to block its notices. Cox contended its repeat infringer policy was sufficient and challenged the plaintiff’s ownership of allegedly pirated works, characterizing Round Hill as “a private equity firm who only had a tangential relationship with the copyright works through partnerships.”
BMG told the judge that Cox only paid lip service to acting on copyright infringement notices, “purporting to terminate repeat infringers while actually retaining them as high speed Internet customers.” In its brief, the company stated, “as a matter of law, allowing known, repeat, flagrant infringers to continue to use the network does not satisfy the DMCA’s requirement of an appropriate repeat infringer termination policy.”
O’Grady ruled against Round Hill because, he found, it does not have exclusive right with respect to the copyrights. But he determined that Cox doesn’t get a “safe harbor defense.” A more detailed memorandum explaining his reasoning is due out soon.