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US record industry backs BMG in the big Cox Communications appeal

By | Published on Tuesday 10 January 2017

Cox Communications

Trade bodies for the US record and movie industries have rallied behind BMG as it fights the appeal by American internet service provider Cox Communications in what is an important test case of those pesky safe harbours in copyright law.

As previously reported, BMG won its $25 million copyright infringement case against Cox in 2015 by basically arguing that the net firm 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 to infringe copyright, but only if the ISP has a decent system in place for stopping said infringement when made aware of it.

Cox filed its appeal last November, focusing on 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.

Responding, BMG defended the accuracy of the copyright complaints sent to Cox by its anti-piracy agent Rightscorp, stating that “the evidence showed that Rightscorp’s system was ‘well over 99%’ accurate'”. It then argued that this case was really about Cox paying lip service to its obligations under safe harbour rules, but then turning a blind eye to repeat infringers so as not to lose their custom.

Shortly after Cox filed its appeal in November, various groups representing the tech sector submitted so called amicus briefs backing up the ISP’s arguments, and the idea that the 2015 ruling in BMG’s favour set a big fat bad precedent. Now, with BMG having filed its response to the report, amicus briefs have followed from the Recording Industry Association Of America and Motion Picture Association Of America insisting that the courts got it very right indeed first time round in this dispute.

In its submission, the RIAA disputes Cox’s claim that court orders against repeat infringers should be required before an ISP is obliged to act. It writes: “Under Cox’s interpretation, copyright owners would be forced to launch demanding campaigns of multiple lawsuits against every individual infringer even to hope to obtain the benefit of ISP repeat-infringer policies. That would require a stream of individual lawsuits in federal district courts all over the country, imposing an additional burden on the courts and draining the resources of copyright owners and individual subscribers alike”.

The whole point of the takedown element of the safe harbour rules in US law, the label trade body implies, is to prevent that heavy burden being the result of depriving rights owners the right to go after the internet firms who provide the tools of infringement. The RIAA adds: “If Congress meant that a subscriber should have been sued in court, had a judgment entered against her, and failed to overturn that judgment on appeal – multiple times – before facing even the threat of losing internet access as a repeat infringer, it would have said so”.

With safe harbours now such a big talking point in the American copyright industries, and no more so than among the music community, the Cox appeal will be getting lots of attention this year. The RIAA and MPAA are hoping that the appeals court keeps the 2015 ruling in place, confirming the obligations of net firms claiming safe harbour protection.