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Significant pre-trial ruling in ongoing BMG/Round Hill v Cox case
By Chris Cooke | Published on Monday 23 November 2015
There was an interesting and potentially significant ruling last week in the ongoing legal battle between music rights firms BMG and Round Hill Music and the US internet service provider Cox Communications, which is due to reach court next month.
As previously reported, BMG and Round Hill sued Cox last year, claiming that the net firm should be held liable for the copyright infringement committed by its customers, because it failed to pass on warning letters to said infringing users on behalf of the music companies. ISPs would normally be protected from liability by the so called safe harbours in US copyright law, but BMG and Round Hill said that the failure to pass on their warning letters to suspected infringers meant that protection should no longer apply.
Most of the other major ISPs in the US are part of a voluntary programme called the Copyright Alert System, via which warning letters are sent to suspected online copyright infringers. Cox has its own warning system in place instead, but BMG and Round Hill said that system wasn’t sufficient, basically implying that the internet firm paid only lip service to its copyright obligations, appearing to terminate the accounts of prolific infringers, but continuing to provide those customers with internet services.
As also previously reported, the legal dispute has resulted in a number of arguments and legal technicalities being presented by both sides. Cox questioned the approach of Rightscorp – the company hired by BMG and Round Hill to chase suspected infringers – whose tactics have been controversial elsewhere. It also criticised the music firms for equating BitTorrent traffic with piracy, and questioned their actual claim to the specific songs listed in the case as having been infringed.
On the latter point, Cox scored some success in its dispute with Round Hill last week, but not BMG. Meanwhile the judge overseeing the proceedings, Liam O’Grady, seemed to side with the music firms on the key point as to whether or not Cox had done enough to combat piracy to qualify for safe harbour protection.
According to The Hollywood Reporter, in a short pre-trial ruling, O’Grady said: “Cox is not entitled to a safe harbour defence”, with the judge writing that there is “no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as is required by S512(i) of the Digital Millennium Copyright Act”.
A more detailed document from O’Grady is expected shortly, outlining his thought processes and conclusions in more detail. It is not clear what last week’s ruling means for the court hearing on this case, which is due to kick off on 2 Dec.
