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Cox goes legal over BMG’s takedown notices and an old email address

By Chris Cooke | Published on Wednesday 5 May 2021

For all us fans of copyright safe harbour legalities – and you’re definitely in that gang – the big bust up between BMG and US internet service provider Cox Communications was a key case.

Yes, it ultimately ended in an out of court settlement after appeals judges ordered a retrial on the basis of some tedious technicalities. However, the same appeals judgement pretty much upheld the conclusion of the lower court.

That being that Cox had a deliberately shoddy system for dealing with repeat infringers among its customer base and – as such – should not enjoy any of that safe harbour protection under US law. Which in turns means it can be held liable for the copyright infringement of its users.

On the back of that conclusion the majors got their lawyers on the case and won a neat billion dollars in damages. A number of other US ISPs are also now fighting similar litigation from the major record companies and their US trade body.

But today we’re here to note that BMG v Cox is back on. Well, this time it’s Cox v BMG. Because the net firm has gone to court to formally moan about the takedown requests that the music firm – and its anti-piracy agency Rightscorp – continue to send to Cox HQ relating to infringing content on its networks. Well, technically they’re moaning about the email address Rightscorp is using.

“In 2017, Cox changed the address for its registered agent from [email protected] to [email protected]”, the new lawsuit states. “Cox updated its website and the directory on the US Copyright Office’s website to reflect this change. Immediately thereafter, virtually every notice sender except for Rightscorp began to send notices to the updated address”.

“Despite Cox’s public notice, and despite multiple subsequent requests and warnings, Rightscorp persisted in sending on behalf of BMG tens of thousands of notices to Cox’s old address”, it goes on. “As Cox advised defendants on numerous occasions, including through outside counsel, Rightscorp’s actions rendered the notices invalid and unactionable as a matter of law”.

“Defendants’ brazen and deliberate non-compliance with the procedures set forth by the [US Digital Millennium Copyright Act], in the face of Cox’s repeated requests, smacks of tortious misconduct”, the lawsuit then claims. “Indeed, rather than comply with Cox’s procedures like other rightsholders – so that defendants’ notices would be processed and forwarded to Cox’s subscribers, potentially stemming the claimed infringement – defendants knowingly and intentionally continue to send Cox notices at an invalid address”.

But why oh why would they do that? “It is clear that defendants have persisted in this blatant non-compliance in a calculated effort to manufacture evidence to support a massive secondary infringement action against Cox. Plainly, defendants intend to claim that Cox’s decision not to process these invalid notices renders it ineligible for the DMCA safe harbour protections and, therefore, subject to potentially astronomical monetary damages”.

“Defendants’ conduct puts Cox in an impossible position”, the ISP claims, “giving it a Hobson’s choice of either not processing the notices and facing a risk of massive secondary liability claims based on an allegedly defective process for handling notices under the DMCA, or needlessly incurring costs and tying up computing resources by processing the notices outside of its established procedures, bypassing Cox’s systems (in which Cox has invested millions of dollars) for handling notices of alleged copyright infringement”.

With all that in mind, Cox wants the court to confirm that all takedown requests sent to the old email address are invalid, and “an order enjoining defendants from continuing these abusive practices, monetary damages, and any other such further relief that the court may deem just and proper”.