Some of you may recall the resounding victory scored by BMG Rights against Cox Communications challenging the gaping holes in Cox’s alleged repeat infringer policy as documented by Rightscorp. (Read the hilarious transcript from BMG v. Cox case denying EFF’s amicus brief as quoted in the Supreme Court amicus brief filed by David Lowery, Blake Morgan, East Bay Ray and Guy Forsyth in the current cy pres case brought by Ted Frank.)
In a follow on from the BMG Rights case, a group of record companies are essentially drafting behind BMG on the sound recording side in their own lawsuit against Cox. This, of course, was to be expected since the evidence unearthed by BMG reflected such a cavalier disregard for the company’s repeat infringer policy and what infringes the song also infringes the sound recording.
Why is that repeat infringer policy so important? In an oversimplified (but accurate) interpretation, no repeat infringer policy, no safe harbor. That is enough to send the shredders humming all over the world and explains why the EFF was so interested in trying to influence the outcome of the case. It also explains why Rightsflow’s investigative services are so important to rights holders as they were instrumental in proving the basic case (although Cox did a very good job of measuring the rope and testing their own noose all by themselves).
It also must be said that Cox never participated in the Copyright Alert System (to my knowledge) which could have gone a long way to helping them getting their repeat infringer policy in line with something that existed in the known universe. They had a chance. One final point is that it is an odd thing that BMG is to date the only publisher to enforce their rights against an ISP that I know of, although I’m happy to be educated otherwise.
If you think lions are lying down with lambs, think again.
The plaintiffs allege in their suit that Cox is not effectively policing their subscribers who are violating copyrights, even when those alleged violators are brought to their attention by rights holders.
Per the lawsuit:
“Cox deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others’ copyrights—even once Cox became aware of particular customers engaging in specific, repeated acts of infringement. Plaintiffs’ representatives (as well as others) sent hundreds of thousands of statutory infringement notices to Cox, under penalty of perjury, advising Cox of its subscribers’ blatant and systematic use of Cox’s Internet service to illegally download, copy, and distribute Plaintiffs’ copyrighted music through BitTorrent and other online file-sharing services.”
The lawsuit takes issue with a provision of the DMCA, a law passed in 1998 that creates a safe harbor for online service providers such as Cox against copyright infringement liability, provided that they have an effective plan in place to deal with infringers.
The lawsuit cites a previous suit brought against Cox by a group of labels led by BMG. In that case, BMG Rights Mgmt. LLC v. Cox Communications, Inc. and CoxCom, LLC, BMG made substantially similar accusations against Cox, claiming that the company did little to deter rampant copyright infringement taking place via its service.
In 2015, a jury agreed with BMG Et Al. and awarded them a $25 million dollar judgment in that case. The judgment was later overturned on appeal, but the appeals court largely sided with the label’s challenge to Cox’s implementation of the DCMA rules.