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Cox Communications Denied Safe Harbor Protection in Case with BMG

The Copyright Act, more specifically the Digital Millennium Copyright Act (DMCA), provides protection for Internet Service Providers (ISP) from copyright infringement where they are unaware that their services are being used to infringe the copyrights of others and where certain procedural safeguards are in place to deal with willful infringers once notified by rights owners. The idea behind the law is to prevent ISP’s for paying for the illegal acts of its consumers when their services are used for lawful purposes. The DMCA doesn’t provide a threshold for the extent of the procedural safeguards necessary to gain protection under the safe harbor, but it appears as though the Judge in this case has made a determination for future ISP’s to follow.

Cox Communications opted out of the voluntary Copyright Alert System (CAS) where ISP’s forward warning letters from rights holders to those suspected of infringement and employs its own system instead. ISP’s who adopt the CAS most likely fall within the safe harbor protection of the DMCA, but the CAS is not required, so other systems are permitted and may garner safe harbor protection as well. Judge Liam O’Grady has determined that Cox’s system, described herein below, was inadequate and did not meet the provisions of the safe harbor protection. Cox’s system allowed for repeat infringement by the same users as the alleged infringers were permitted back into the system within days. Cox was concerned with making money off its consumers and is of firm belief that the infringement battles should be handled in the courtroom. Consumers who were accused of infringement by a rights owner were restricted from the site for a day or so and allowed back on to commit the same lawless behavior. In fact, Cox wiped these users’ slates clean as if they had never been cited for unlawful infringement before.

Emails between Cox Communication employees demonstrate Cox’s deliberate circumvention around the DMCA in an effort to increase revenues. Cox minimally complied with the DMCA in creating a system, but the Judge determined their system was “deliberately shoddy” at best, at least prior to 2012. Cox questioned whether its legal obligation required it to terminate repeat infringers, especially because some complaints of infringement lack validity. Cox contends that it is not their place to make that determination, that their only obligation is to implement a system to deter the unlawful infringement, which Cox believes it does. The Judge determined that at least with repeat infringers, Cox had an obligation to terminate their access permanently instead of for a few days as its policy permitted.

Judge Liam’s determination here seemingly starts a standard for the systems required to receive safe harbor protection under the DMCA. Now we know that “deliberately shoddy” practices will not be tolerated and ISP’s who employ those types of systems will not be protected and thus liable for copyright infringement. Without providing a clear definition for what constitutes “deliberately shoddy” practices, there will likely be another wave of ISP’s testing the waters to determine if their system falls right below the benchmark and allows them to escape from infringement liability.


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