The major record companies have sued US internet service provider Cox Communications for copyright infringement, following BMG’s lead in taking on the net firm over its shoddy approach to dealing with infringers among its customer base. Cox, of course, has always claimed safe harbour protection from liability for its customers’ prolific pirating of top tunes.
That made BMG v Cox one of the big safe harbour cases in the US. The safe harbour means that an internet service provider cannot be held financially liable when its users distribute copyright material without licence. Though that protection is conditional on the ISP having systems in place to remove infringing material and deal with repeat infringers, if and when it is made aware of infringing activity by a copyright owner.
BMG accused Cox of only paying lip service to its own repeat infringer policies. The music firm then argued that that meant the ISP should not be granted safe harbour protection and should therefore be liable for the infringement of its music by Cox customers. In 2015, a jury sided with BMG, resulting in the $25 million damages bill.
That ruling was subsequently overturned on appeal, but based on a technicality regarding the way the judge in the original case had briefed the jury. Although Cox was successful in having the earlier judgement set aside, the appeal court’s ruling basically reinforced many of BMG’s arguments.
So much so, the Recording Industry Association Of America used the appeals court judgement to aid its legal battle with another ISP called Grande Communications. In a filing related to that case, the record industry trade body argued that the appeals court ruling in BMG v Cox “affirmed the holdings … that [we] rely on here, and expressly rejected the central arguments [Grande] advance in their motions to dismiss”.
Sony, Universal and Warner also cite the BMG case in their new lawsuit against Cox, which was filed earlier this week. They say that while Cox claims to have an internal procedure to deal with repeat infringers in its customer base, the earlier case confirmed this process to be a “sham”.
Elsewhere in the new lawsuit, the majors say Cox “knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers”. When the labels started flooding the ISP with copyright infringement notices, “rather than working with plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders”.
This, the labels say, meant Cox was “wilfully blinding itself to any of its subscribers’ infringements that exceeded its ‘cap'”. Why would it do such a thing? “The reason for this is simple”, the labels argue, “rather than stop its subscribers’ unlawful activity, Cox prioritised its own profits over its legal obligations”.
It remains to be seen how Cox responds to this new big bucks copyright action.