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BMG responds to appeal in Cox Communications dispute

By | Published on Friday 6 January 2017

Cox Communications

Your good mates over there at the BMGs recently responded to formal efforts by US internet firm Cox Communications to overturn the big 2015 case in which the ISP was held liable for the naughty copyright infringing activities of its customers.

As previously reported, in an interesting case testing US safe harbour rules, BMG basically argued that Cox operated a deliberately shoddy system for dealing with repeat infringers among its consumer base. Safe harbours say that internet firms can’t be held liable when customers use their net access or server space to infringe copyright, but only if the ISP has a decent system in place for stopping said infringement when made aware of it.

BMG won $25 million in damages after successfully arguing that Cox should not enjoy safe harbour protection because of its shoddy procedures for dealing with those repeat infringers. Evidence presented by the music rights firm included internal correspondence between Cox employees which seemed to show a culture of turning a blind eye to infringing customers so as not to lose their business.

Core to Cox’s appeal, which was filed in November, is the question of whether or not internet companies are obliged to always give credence to accusations of infringement made by rights owners. The ISP argues that cutting back or cutting off a customer’s net access based on a mere allegation, rather than a court order, sets a dangerous precedent.

Or in Cox’s words: “If allowed to stand, that judgment would force ISPs to terminate subscribers’ internet access – and with it access to critical information, e-commerce, and entertainment – based on the say-so of third parties. This court should reverse”.

Not so, says BMG in its response, arguing that this case is actually about Cox deliberately instigating a shoddy takedown system, so that it could pay lip service to safe harbour laws, but not have to actually tackle any copyright infringing customers.

Cox – which chose not to sign up to the industry standard Copyright Alert System employed by other major US ISPs – set up a procedure for dealing with repeat infringers that was, says BMG, “an elaborate sham”.

In its response to the ISP’s appeal, BMG writes: “Over and over, Cox failed to terminate flagrant repeat infringers, including one who admitted to ‘years of doing this’ and whom Cox abuse employees regarded as ‘well aware of his actions'”. The response adds that “the undisputed evidence shows that Cox’s claim to terminate repeat infringers was an elaborate sham”.

BMG’s latest legal filing does deal with Cox’s claims that the takedown requests it submitted to the ISP, mainly via its anti-piracy agent Rightscorp, were flawed and therefore not credible. Says the music firm: “Cox claims that BMG’s notices are ‘littered with flaws’, but Cox was able to identify errors in a tiny handful of the 1.8 million BMG notices at issue. The evidence showed that Rightscorp’s system was ‘well over 99%’ accurate”.

Given how much time was spent debating safe harbours by the music industry last year, the appeal stage of this dispute may be more closely followed than the initial trial, given it asks a number of important questions about how the safe harbours in American copyright law should actually work day to day.

For a full explanation of this case, and the wider safe harbour issues, why not come to the CMU Insight masterclass ‘Key Developments In Music Rights’ on 6 Feb in London? Click here for info.