For those new to this story, let’s take a step back. Music publishing giant BMG Rights Management accused Cox of failing to live up to its obligations under the Digital Millennium Copyright Act. That law requires ISPs to do what they can to limit access for repeat copyright infringers.
If Cox had followed those guidelines, it would have benefited from “safe harbor” protections that shield Internet Service Providers from being held liable for their customers’ piracy.
But in documentation presented to the court, BMG showed that Cox was not only incredibly lenient toward repeat offenders — letting them rack up more than 10 alleged offenses before being at risk for losing their service — but also that some Cox executives were deliberately allowing known offenders to continue as customers.
“This way, we can collect a few extra weeks of payments for their account,” read an email sent by Cox’s Manager of Customer Abuse Operations.
Additionally, Cox actively blocked copyright claims from third-party rights management company RightsCorp, going so far as to prevent RightsCorp filings from ever even reaching Cox servers.
“Blocking messages goes one step beyond blacklisting,” wrote the judge in granting summary judgment for BMG. “When a complainant is blacklisted, Cox still has a record of the emails received and deleted. When a complainant is blocked at the server level, there is no record of any message received.”
In the end, a jury was asked to decide on four questions [PDF]:
• Did BMG prove that Cox customers were using their Internet access to violate BMG copyrights? The jury answered “yes.”
• Did BMG prove that Cox’s actions (or lack thereof) contributed to this infringement? Again, that’s a big “yes” from the jury.
• Did BMG prove that Cox was willful in its behavior? Quoth the jury, “yes.”
• Did BMG prove that Cox had vicariously infringed on BMG’s copyright? On this one, Cox earned a victory with a “no” from the jury.
This last question is incredibly important. Had the jury said “yes,” indicating that Cox somehow profited from the piracy, the company would have faced even larger penalties.
Holding an ISP accountable to that extent for its customers’ bad behavior could have a chilling effect on the industry, as ISPs would clamp down even harder on alleged piracy.
DMCA claims are already problematic. Many websites operate under the assumption that a copyright claim is legitimate, leading to dubious takedowns, patently false infringement allegations, and absurd demands from copyright holders.
Even in the Cox case, a number of plainly innocent customers were caught up in the lawsuit as BMG sought to have their information turned over as evidence in the case. Those who were able to prove they weren’t even Cox customers during the time in question were able to have themselves removed, but it still shows the extent to which some copyright holders will go to hold anyone they can responsible for infringement.
Even with the “no” answer from the jury on the vicarious infringement question, some privacy advocates believe the verdict could still result in stricter copyright enforcement from ISPs.
“This could have a real impact on how Internet service providers treat their customers, in a detrimental way,” Charles Duan of Public Knowledge tells Bloomberg Law. “The concern is that out of fear of these sorts of verdicts, a lot of ISPs could take a conservative approach, which could lead to account terminations for people using the Internet in legal and reasonable ways.”
by Chris Morran via Consumerist
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