Federal Judge Rules That Cox Communications Isn’t Protected by the DMCA

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Last year, two music publishers had the balls to sue a major ISP, an expensive and risky undertaking.  Now, that gamble is paying off: late last week, a federal judge ruled that Cox Communications, one of the largest ISPs in the U.S., has forfeited its right to DMCA ‘safe harbor’ protections based on its failure to terminate the accounts of repeat infringers.

The decision represents a massive setback not only for Cox Communications, but all broadband access providers in the US, most of whom have assumed little-to-no responsibility for large and ongoing levels of copyright infringement.

The ruling pertains to a summary judgment motion by plaintiffs BMG Rights Management and Round Hill Music, and doesn’t end the long-running warfare between the parties.  But it could fundamentally alter the hands-off manner in which ISPs and broadband access providers deal with piracy — or rather, don’t deal with it.  “For several years, Cox had an ‘under the table’ policy of purporting to terminate repeat infringers while actually retaining them as high speed internet customers,” the plaintiffs argued in papers recently filed.  “The ‘terminations’ were in name only as Cox immediately reactivated these infringers without ever canceling their accounts.”

 

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Indeed, Cox has been lackadaisically dealing with its most pernicious infringing subscribers, who are, conveniently, typically paying big premiums for high-data accounts.  That makes business sense for Cox in the short term, but could create longer-term issues. The reason is that Cox’s policy of ignoring big-time pirates violates a critical requirement of the Digital Millennium Copyright Act (DMCA), which calls for providers like Cox to, well, do something about it.  “As a matter of law, allowing known, repeat, flagrant infringers to continue to use the network does not satisfy the DMCA’s requirement of an appropriate repeat infringer termination policy,” the Plaintiffs wrote.

“There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as required by Section 512 of the DMCA.”

US District Court judge Liam O’Grady agreed, effectively stripping Cox of the very cushy DMCA shield.  “The court grants the motion with respect to defendants’ safe-harbor defense under the Digital Millennium Copyright Act (“DMCA”),” Grady opined (full ruling below).  “There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as required by Section 512 of the DMCA.”

Enter Rightscorp, an aggressive copyright enforcement firm that has factored as a critical party in this litigation.  Rightscorp, a staunch pro-copyright cop (and DMN partner), has been deluging Cox with infringement notices to pass to its customers, a pass-through that Cox has flatly refused (Rightscorp can identify IP addresses, but only Cox can match those to account holders).  Throughout, Cox has alleged that Rightscorp uses bullying tactics to force settlements with infringing subscribers, though Cox itself has also refused to police its own network.

Indeed, Rightscorp is hated by ISPs like Cox, but big copyright owners have made little headway with friendly diplomacy.  Just recently, Rightscorp was tapped by Sony/ATV Music Publishing, the largest music publisher in the world, to combat a pernicious piracy problem that simply isn’t abating (and for more on that, read this).  Elsewhere, companies like ToppleTrack have emerged to help smaller rights owners, including independent artists and labels, deal with user torrenting of their content.

Despite these interventions, the underlying problem remains a relative free-for-all when it comes to the illegal torrenting and downloading of songs, movies, books, and games, a problem that goes far beyond Cox’s network.  Now, the question is whether Cox, and other broadband access providers, can continue banking on that ‘green zone’ of piracy and the cash that comes with it.  Stripped of the DMCA, Cox may now be forced to argue that they can’t be pinned with ‘secondary liability,’ either in the form of ‘contributory’ or ‘vicarious’ infringement liability, a more tricky  ‘dumb pipe’ defense.

 

49 Responses

  1. Name2

    Here’s what Judge O’Grady had to say about the impact of denying Internet access:

    I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.

    Apparently, Rightscorp is not “hysterical”. Which I find hysterical.

    I hope Rightscorp has some money stashed away for the appeals.

    https://www.techdirt.com/articles/20151120/15104732874/judge-mocks-public-interest-concerns-about-kicking-people-off-internet-tells-cox-not-protected-dmca.shtml

    Reply
    • FarePlay

      Add Stay Down to the current Section 512 Takedown notification. Return control to the creators to determine who can use their work on the internet. Sign the petition, http://www.endpiracy.org, and send this letter to Congress:

      For over 15 years artists have had their constitutional rights trampled, in many cases by laws that were supposed to protect them.

      The Digital Millennium Copyright Act was designed to protect websites from infringement claims due to material posted by third parties, as well as give artists an effective tool to remove infringing content.

      It is not working. Active infringing sites still get their safe harbor, but artist rights get destroyed. Google alone received 345 million take down notices last year. This means every day of the year there are 900,000 notices sent to Google about infringing material. This infringing material is taken down, only to be reposted on the same sites, sometimes within a matter of hours.

      On March 13, 2014 in testimony before the Congressional Subcommittee on Courts, Intellectual Property and the Internet, a major book publisher testified to sending take down notices 571 times for the same book on the same website.

      The result is that since 1999 copyright holders have lost over 100 billion dollars to Internet piracy. The worldwide music industry has shrunk by 62%. There are 45% fewer working musicians in the United States than in 2002.

      Small independent film makers spend their time not making movies, but sending out 50,000 take down notices in a vain attempt to sweep aside the tide of recurrent copyright infringement. We need to change the laws to make sure that artists spend their time making art, not sending take down notices.

      It is time that a take down notice be sent once, and only once. Thereafter it should be the duty of the website to prevent the reposting of the same material. The technology to do this is available. What is lacking is the legal directive to use this technology to prevent the wholesale theft of artistic creations.

      Close the loophole in the Digital Millennium Copyright Act that provides safe harbor for online piracy. Place the responsibility where it belongs, with those websites that profit from it. Protect artist’s rights. Stop protecting those that profit from internet piracy. “Take down” needs to become “take down and stay down”.

      We are asking congress to add a “stay down” provision to Section 512 and restrict safe harbor protection for infringing sites. Protect creators, not those who profit from internet piracy.

      Sincerely,

      Reply
      • Anonymous

        “Add Stay Down to the current Section 512 Takedown notification”

        FarePlay, we can all support that — but it’s not a solution to the ISP problem:

        ISPs would still sell access to the Pirate Bay and other criminal sites that don’t respect takedown notices.

        “The result is that since 1999 copyright holders have lost over 100 billion dollars to Internet piracy”

        And now it’s time for the ISPs to pay back every cent.

        Reply
        • Name2

          “The result is that since 1999 copyright holders have lost over 100 billion dollars to Internet piracy”

          And to think I got grief over a typo.

          Reply
        • FarePlay

          Without Stay Down these infringing sites remain in a grey area and can file years of appeals and continue to divert revenue from creators. We need to establish a threshold of takedown and staydown violations and legal consequences that empower authorities to force ISPs to block these sites or lose their licenses.

          Reply
          • Anonymous

            “We need to establish a threshold of takedown and staydown violations and legal consequences that empower authorities to force ISPs to block these sites or lose their licenses.”

            Absolutely!

      • Name2

        Well, it’s important what the appeals judge thinks. A judge creating a completely new crime (being accused of infringement by the extortion/protection racket Rightscorp) and associated punitive measures (lose your internet access because Rightscorp says so) out of whole cloth? And not a real clear understanding of what’s in the DMCA?

        [shrug]

        Enjoy while you can. The appeals will be fun. Cox will almost surely get injunctive relief immediately.

        Reply
        • Anonymous

          “extortion/protection racket Rightscorp”

          Wait — you’re one of these TorrentFreak weirdos, right?

          Reply
          • Name2

            Richtscorp racketeers as a business model.

            The courts will soon catch on.

          • Your English Teacher

            “Richtscorp racketeers”

            You clearly don’t know what Rightscorp is — in fact, you can’t even spell it… 🙂

          • Name2

            It’s called a typo, luddite.

            I don’t use stone tablets and chisels. Shit happens.

          • Your IP Teacher

            “Haters gonna hate”

            … is the perfect example!

            You can trademark short phrases though, but that’s an entirely different kettle of fish…

    • Anonymous

      “the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.”

      Spot on! 🙂

      Reply
  2. Anonymous

    “The decision represents a massive setback not only for Cox Communications, but all broadband access providers in the US, most of whom have assumed little-to-no responsibility for large and ongoing levels of copyright infringement.”

    YES, YES, YES! 🙂

    Wow!

    Reply
  3. Anonymous

    “Rightscorp was tapped by Sony/ATV Music Publishing, the largest music publisher in the world, to combat a pernicious piracy problem that simply isn’t abating (and for more on that, read this)”

    I think you forgot a link.

    Reply
  4. Anonymous

    Going after the ISPs should’ve happened years ago — it’s beyond me why they were allowed to steal our property for decades — but I guess you could argue this is the perfect timing:

    1) With the huge amount of cheap, or free, legal streaming services today, there’s no longer any need for piracy.
    2) Google is not the main enemy anymore — do a Google search for Adele 25, and you won’t find one link to stolen versions on their front page

    So it makes perfect sense to focus on the ISPs now.

    ISPs steal billions of dollars every year from artists, writers, singers, composers, directors, producers, designers, mixing- and mastering engineers, software developers, etc.

    Reply
    • Me2

      Do a google search for ‘Adele 25 torrent’ or ‘Adele 25 download’ and you’ll find infringing links.

      Reply
      • Anonymous

        Yes, I know — and yes, that’s disgusting.

        But my point is that Google no longer tries to turn fans into thieves. And that’s a step in the right direction.

        The ISPs, on the other hand, still make billions from selling access to criminal sites such as the Pirate Bay.

        So it definitely makes sense to go after them instead.

        Don’t forget they could stop all piracy today without violating anybody’s rights, resulting in an unprecedented boost of global economy.

        Reply
    • Name2

      Going after the ISPs should’ve happened years ago — it’s beyond me why they were allowed to steal our property for decades — but I guess you could argue this is the perfect timing:

      You can’t torrent a sweet potato pie. I recommend a career change.

      Reply
      • Anonymous

        “I recommend a career change”

        Yeah, we really don’t need music, literature, movies and software…

        Reply
        • Name2

          Not at the cost of several of the bill of rights, no.

          I understand you have a business problem. That doesn’t mean gangsters get to turn our justice system on its head. Sorry.

          Reply
          • Me2

            Which particular articles in the Bill of Rights are you referring to, and which specific actions are turning the justice system on it’s head?

            No intending to sound like a mid-term essay question, but some particular examples might help us understand.

          • Anonymous

            Article 13: I have the right to steal your property.

            Seriously, the guy’s just a TorrentFreak troll…

          • Anonymous

            If the ISPs had the guts to steal the analog versions instead, a lot of them would get shot while breaking & entering.

            Nobody has the right to steal my property — physical or intellectual.

            And I have the right to protect it.

          • Name2

            I’ve said it before: you people in full fury sound like Principal Togar at the end of “Rock and Roll High School”

            “Detention! Detention for Seagate and Western Digital! Everybody gets detention forever!”

          • Anonymous

            And you sound like the classic douchey freetard.
            Grow up, get out of your parent’s basement, and try to contribute something to society.

  5. Man from 1998

    We need an easier way to download music! It takes me an hour to just get one song using 56 kbps dial-up. Then my brother tries to make a call and cuts it off in the middle!

    I wish there were an easier way to download entire discographies of my favorite artists in less than 5 minutes.

    Reply
  6. Name2

    Hey Resnikoff, why no story about Vice’s interview with members of EODM talking about the Bataclan massacre? Why no links to the video of the musician still unable to tell the story of what they found in their dressing room without losing it? About how what they found was a mixture of the dead and the pretending, who refused to leave their dead friends behind? About the kid who hid under one of the bandmembers’ leather jacket?

    That’s quite a news story, non?

    How are things today at DMN world HQ? Your coffee okay? Nice and hot?

    Reply
    • Paul Resnikoff
      Paul Resnikoff

      Sad story, all around. It’s going to take time to recover. In terms of the music world, it could have repercussions for the touring world (just look at Dylan’s reaction, not to mention all of the cancellations).

      Reply
  7. Name2

    Funny story: I bought some vinyls from the merch table at a struggling show this week. Even though I don’t have a turntable at the ready, ya gots to spend at that merch table. It’s what a well brought-up gentleman does.

    Although I did not solicit the info, I learned that the artist had to buy the vinyls from her record company and hope to make $$ selling them on road, the way a cocktail waitress has to go chasing people down because she works in a shitty house where she buys the drinks from the bar up front. This label (it will go unnamed) would be instantly recognized as a decades-old, long-standing indie powerhouse/marquee brand.

    So cry me a fucking river that somebody downloaded some Adele.

    Reply
    • meelzonweelz

      eowzza! I used to think artists having to buy units from their labels at inflated cost would have been the domain of music “execs” with a P.O. box for the label address and regular “A&R” meetings at the Burger King. Now, it seems the practice is mainstream. Adele on the other hand, she’s a class act. I love it when people say “vinyls”, it makes me feel like i might have some class too.

      Reply
    • Anonymous

      Why wouldn’t the artist have to buy them? The label doesn’t conjure them up for free out of thin air. But usually the artist doesn’t have to pay cash, they’re advanced the records for free and the wholesale cost comes out of future royalties. It’s a perfectly fair setup.

      Reply
  8. Anonymous

    Ya know any costs the ISP’s end up having to cover, or profits they lose, will be placed back onto the consumers…

    Reply
    • Name2

      Pirate.

      It is only fitting and fair that everybody be taxed through their ISP bill to pay for record business welfare.

      Reply

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