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Cox Communications begins appeal process in landmark safe harbour case

By | Published on Wednesday 24 August 2016

Cox Communications

US internet service provider Cox Communications has formally announced its intent to appeal the landmark copyright infringement ruling made against it last year in a legal battle with BMG.

As much previously reported, BMG basically accused Cox of operating a deliberately shoddy system for tackling suspected file-sharers on its networks. Most other ISPs in the US signed up to the Copyright Alert System, under which they commit to forward warning letters to suspected file-sharers on behalf of rights owners who have spotted some file-sharing. Cox is not part of that programme, but insists it has its own procedures in place instead.

However, BMG demonstrated in court that those procedures were ineffective, in particular presenting internal correspondence between Cox employees that suggested the policy was to be lenient with file-sharing customers, so as not to lose their custom. BMG successfully argued that this meant Cox should lose its protection under the safe harbours of copyright law and be held liable for the infringement of its users. The net firm was ordered to pay $25 million in damages to the music rights company.

Cox initially tried to have that judgement overturned – or a retrial declared – by seeking a motion in its favour based on various points of law, including whether or not BMG had sufficiently proven any infringement actually took place on Cox’s networks, and whether the ISP could, in fact, be held liable for so called contributory copyright infringement. But earlier this month the judge overseeing the case declined to grant such a motion.

Hence the formal appeal. The ISP filed papers with the courts earlier this week confirming its intent to now take the case to the US Court Of Appeals for the Fourth Circuit.

The wider internet industry in the US will be watching the appeal closely. The Cox ruling arguable sets an important precedent that makes it more likely that other ISPs could be likewise held liable for the copyright infringement of their customers. And the anti-piracy agency employed by BMG, the sometimes controversial RightsCorp, has been writing stern letters to that effect in a bid to pressure other internet companies to become more compliant in helping rights owners identify and target suspected infringers.