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BMG and Round Hill sue US net provider for failing to act over file-sharing users

By Chris Cooke | Published on Monday 1 December 2014

Just ahead of last week’s Thanksgiving festivities of turkey guzzling and mad midnight shopping sprees, BMG and Round Hill Music filed a lawsuit Stateside that could prove to be an important test case under American copyright law of the obligations, or otherwise, of internet service providers in the ongoing fight against piracy.

According to the Wall Street Journal, the two music rights firms are suing Cox Communications, the third largest cable TV company in the US. The music companies say that Cox should be held liable for the copyright infringement of its file-sharing customers because it has failed to respond in any way to notices alerting the company to the actions of its infringing users as provided by BMG and Round Hill’s reps Rightscorp Inc.

Of course, for years now the music and movie industries have been calling on the internet service providers to do more to stop their customers for accessing illegal sources of content.

In the main, the ISPs have resisted such calls, and have lobbied against moves in the political community to force net firms to operate graduated response systems, whereby they are obligated to send suspected file-sharers warning letters, which either threaten sanctions such as bandwidth throttling, or at least the sharing of contact information with rights owners which could then launch direct legal proceedings against the file-sharer.

That said, in some countries – including the US and the UK – many big ISPs have voluntarily signed up to a usually watered down version of graduated response, either to placate governments which have threatened to force more draconian measures on net firms if they don’t play ball voluntarily, or because – as owners of pay-to-view movie services – at least some execs at the net companies are concerned about piracy.

But in the US, Cox Communications was the one major player suspiciously absent from the deal struck between the big rights owners and the cable companies back in 2011, the Copyright Alert System which involved the likes of Cablevision, Comcast, Time Warner and Verizon.

Cox, however, does have its own alternative system for dealing with file-sharing complaints from rights owners, and it’s that system that will be under the spotlight should BMG and Round Hill’s litigation get to court. That and America’s good old Digital Millennium Copyright Act, of course.

The DMCA provides protections to internet companies that unknowingly enable third parties to infringe copyright, providing they have systems in place for copyright owners to seek the removal of infringing content or tackle infringing activity. Cox will almost certainly claim that it provides such a system, despite not being part of the Copyright Alert programme. BMG and Round Hill will argue that system is insufficient.

According to the WSJ, the legal complaint notes: “Cox has had … knowledge of … repeat infringement by its subscribers [via Rightscorp]. Nonetheless, Cox has repeatedly refused to terminate the accounts of repeat infringers. The reason that Cox does not terminate these subscribers and account holders is obvious – it would cause Cox to lose revenue”.

Of course, the safe harbour elements of the DMCA are full of ambiguities, and attempts by the rights owners to make tech companies liable for copyright infringement on the basis that takedown or similar copyright alert systems are shoddy – and possibly deliberately so, in order to protect infringers – have not always been successful in court.

Which would make the Cox litigation an interesting test case, and one that could provide clarity as to what, exactly, the obligations of the ISPs are under current US copyright law. And it could go either way.