Federal Jury Finds Cox Communications Guilty of Willful Copyright Infringement

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Updated: 3 pm PT; 6 pm ET to include Cox statements on the ruling.

Cox Communications is one of the largest broadband ISPs in the world.

Cox Communications just lost one of the largest copyright infringement lawsuits ever litigated.

The Virginia-based access provider has been embroiled in massive litigation over its customers’ illegal downloading for the past year, with arguments see-sawing over whether Cox should be liable.  Cox, like many other ISPs, has argued that it merely offers a passageway to the internet, good or bad, and its compliance with the Digital Millennium Copyright Act offers it ‘safe harbor’ from illegal downloading and sharing.

Ultimately, the court found the situation to be more complicated than that, with Cox now ruled guilty of both contributory and willful contributory copyright infringement by a federal jury.  The jury award is $25 million, though that probably represents a small prelude to damages that could ultimately push into the hundreds of millions.

Cox is preparing its response, including an outright appeal.  “We are unhappy with the decision, will review the ruling in detail and are considering our options, including appeal,” a Cox spokesperson tersely relayed.

Signs of trouble first started appearing this fall.  Cox has been battling litigation from publishers BMG Rights Management and Round Hill Music for more than a year, though the ISP was just recently stripped of its DMCA protections by a US District Court judge.  That momentous decision was prelude to another bombshell: reams of internal emails between Cox ‘abuse managers’ revealing a calculated strategy to keep high-paying repeat infringers on its network, regardless of the behavior.

Now, lots of big guns are being pointed in Cox’s direction.  Just last month, underwriters of Lloyds of London took legal action to remove their liability obligations to Cox, based on ample evidence of negligence and disregard for copyright infringement violations.  That case is just getting started in New York, though it could leave Cox holding a very large liability bag.

A brigade of rights owners are also standing ominously on the sidelines.  “We believe this decision sends a message to ISPs that they have a responsibility to act upon and limit the massive copyright infringement using their networks that has been brought to their attention by copyright owners,” warned Michael Allen, partner at BMG law firm Steptoe & Johnson.  Now, the question is what penalties await those that have historically neglected those responsibilities, starting with Cox.

The decision also marks a major win for heavily-attacked Rightscorp, a copyright bulldog (and DMN partner) that is now proving that it has some serious bite.  Throughout the dogged litigation, Cox routinely dismissed Rightscorp as a hack copyright patrol, while refusing to forward tens of thousands of Rightscorp notices to offending subscribers.

That turned out to be a critical mistake, as trashing (or auto-deleting) Rightscorp notices was found to be part of a pattern of side-stepping DMCA takedown requirements.  Most importantly, Cox was found negligent when it came to dealing with  ‘repeat infringers,’ a core requirement of the DMCA.   In dirty internal email after dirty internal email, Cox employees decided to ‘terminate,’ then immediately reinstate, offending users, with the strategy that this would technically qualify as a DMCA ‘response’.

The subterfuge didn’t pass the judicial sniff-test, with Cox now subject to not only a $25 million fine, but potentially hundreds of millions in future legal actions from a giant class action of content-owning litigants.

More as it develops.

 

 

54 Responses

  1. Anonymous

    Best music news in this century, so far!

    Going after the ISPs should’ve happened years ago — they steal billions of dollars every year from artists, writers, singers, composers, directors, producers, designers, mixing- and mastering engineers, software developers, etc.

    Reply
    • it's about time!

      I can hear the screaming from here… you are all wrong -> mike masnick, tech dirt, the eff, future of music, google, john perry barlow, public knowledge, fight for the future… the day is coming shills…

      Reply
    • rikki

      now if they will go after black people who have been stealing and selling hard drives on ebay for the last 15 years…no one black has ever been sued by the RIAA…… you never see a hip hop rap internet station with a royalty paid sticker…….we have to take a stand against black privilege in America

      Reply
    • story101

      Ofc you refuse to mention how the music and movie industry use their absurd amount of money to influence and abuse corrupt members of the government to get copyright laws extended each time mickey mouse will go into the public Domain.

      Reply
  2. Anonymous

    According to a Business Insider story today, Facebook’s industrialized video theft may be next:

    When a YouTuber reported to Facebook that his content was stolen and uploaded illegally to Facebook, he received this reply from Facebook’s copyright-infringement team:

    “We don’t see how the content you’ve reported, used in this context, violates your rights and we are not in a position to take action”

    I’ll post the link in a separate comment below.

    Reply
    • Anonymous

      Watch Google fund Cox for its appeal, either directly or laundered through the EFF.

      Reply
        • Anonymous

          I think not too long after this suit was filed though, you ran an article about Cox lawyering up with Google counsel. Am I remembering that correctly?

          Reply
          • Anonymous

            I seem to recall something like that, too.

            It wouldn’t exactly come as a surprise, either.

        • Anonymous

          Google absolutely can be sued, and they should be, as they will lose.

          Search engines are covered under the DMCA as “information location tools”. They are eligible for safe harbor only “if the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity”

          Google might well be responding to DMCA notices, however they continue to include links to these sites on their search engine.

          I guarantee you a quick audit of Google’s online ad business will demonstrate that they most certainly profit from these pirate sites.

          Sue them out of business.

          Reply
          • No Youre+Confused

            Hey, this is a GREAT IDEA!

            You’re the ONLY ONE who has realized this!!!

            No one has EVER sued Google, alleging secondary, contributory or direct copyright infringement – EVER before!!!

            *forehead slap*

          • No Youre+Confused

            If by “mad” you mean “actually informed” then, yes.

    • Anonymous

      Dealing with VPNs is next. For example Google has decided to help people that use VPNs to pirate by prioritizing https over http in their search results. It appears many pirates would rather sacrifice speed and pay 7+$ a month for a VPN, than pay 10$ for a legal service. There is little or nothing that can be done about changing the behavior of sociopaths such as these.

      Reply
  3. Name2

    BMG also argued that the ISP willingly profited from pirating subscribers, but the jury found that there was not enough evidence to back this up.

    Reply
    • Anonymous

      The jury gave Cox a break on this one, unfortunately. Likely because a guilty verdict on that charge would have sent Cox to bankruptcy proceedings.

      Reply
  4. FarePlay

    While I applaud the outcome of this case, to get to this point, Cox had to go far beyond what could have been accomplished years earlier if we had a takedown notification process that actually worked as it was intended.

    This legal victory points up how broken and ineffective our existing takedown notification regulations are in their current form. We are 17 years overdue in closing a loophole that has rendered artists helpless in deciding who uses their work. Time to level the playing field for creators.

    Your support of a takedown and staydown amendment to Section 512 of the DMCA will shine a light on the severity of the problem and get the attention it needs to be amended by Congress.

    If you haven’t signed or haven’t read the petition it is an easy way to support artists and their work against exploitation: http://www.takedownstaydown.org

    Reply
  5. FarePlay

    While I applaud the outcome of this case, to get to this point, Cox had to go far beyond what could have been accomplished years earlier if we had a takedown notification process that actually worked as it was intended.

    This legal victory points up how broken and ineffective our existing takedown notification regulations are in their current form. We are 17 years overdue in closing a loophole that has rendered artists helpless in deciding who uses their work. Time to level the playing field for creators.

    Your support of a takedown and staydown amendment to Section 512 of the DMCA will shine a light on the severity of the problem and get the attention it needs to be amended by Congress.

    If you haven’t signed or haven’t read the petition it is an easy way to support artists and their work against exploitation: http://www.takedownstaydown.org

    Reply
  6. FarePlay

    While I applaud the outcome of this case, to get to this point, Cox had to go far beyond what could have been accomplished years earlier if we had a takedown notification process that actually worked as it was intended.

    This legal victory points up how broken and ineffective our existing takedown notification regulations are in their current form. We are 17 years overdue in closing a loophole that has rendered artists helpless in deciding who uses their work. Time to level the playing field for creators.

    Your support of a takedown and staydown amendment to Section 512 of the DMCA will shine a light on the severity of the problem and get the attention it needs to be amended by Congress.

    If you haven’t signed or haven’t read the petition it is an easy way to support artists and their work against exploitation: www.takedownstaydown.org

    Reply
  7. Team Artist is Smarter

    Whoever mentioned Futiure of Music Coalition in the same sentence of the rest of the piracy defenders is so incredibly full of sh*t. Future of Music is unabashedly against piracy and always has been. It’s unbelievable that there are jerks out there who pretend that sticking up for artists against ANY corporation–tech or content–that builds massive businesses on artists’ work and fails to treat them fairly is anything less than righteous. How about you drop yiur overlord’s talking points and join Team Artist. We have cake!

    Also, this case has more to it than what you see on the surface.

    1. Having a repeat infringer policy is a statutory obligation. The evidence in the Cox case blows their safe harbor. Nobody is above the law. The days of fudging to avoid churn are over.

    2. Cox does not participate in the Copyright Alert System with the other ISPs. CAS is a set of non-legally binding protocols that interestingly do not have a repeat infringer requirement. CAS instead resets infringers to “zero” after progressive escalations in notices (and optional throttling). Which means the agreement that the other major ISPs signed is more toothless than the statutorily mandated policy Cox failed to implement.

    3. As a major content studio owner and CAS member, Comcast would love to see a rival stung like this. Remember, it’s really about cozying up to content in order to win the set top box wars and preserve the favored distribution model.

    This ruling is a good thing. But it doesn’t let anyone off the hook.

    Reply
  8. Rick Shaw

    This just proves that the legal system is broken. To go after ISPs is ludicrous. What you, and others, are cheering about is a ruling (any ruling) in favor of music. It’s too bad that the real criminals are not held accountable. The ISPs didn’t infringe. The consumers who used the ISPs infringed. Don’t sure a company when the consumer uses their product/service improperly. That’s just stupid…but the American way. Victory!

    Reply
    • I think

      you’re right COX didn’t infringe. They made money but turning the other way with knowledge that the infringers were using their service. I think that’s why it’s called contributory or something like that.

      Gotta go! I’m renting a building to a crack dealer and the only way he can pay rent is if the crack addicts can get through the front door so I’m making sure that front door works…..no crime in that right?

      Captcha not working? I’m gonna sue you Paul…It’s the American Way!!!

      Reply
      • Rick Shaw

        And typical in this scenario of protecting intellectual rights, those people that don’t directly commit the criminal act are sued, and it always goes back to the two excuses against tagging those truly responsible for the acts of infringement: 1. It’s too difficult. 2. It’s bad for business. Nobody wants to go after those consumers who do the crime. That’s what should be done, but instead; rights holders choose to ignore this fact. Shameful.

        Reply
    • Troglite

      Bullshit!!

      The court ruling clearly indicates that Cox was obligated under the DMCA to cooperate with efforts to hold the actual copyright infringers accountable by terminating their accounts. Cox failed to do so. They even tried to hide or obscure their actions by pretending to terminate those accounts. If Cox had fulfilled their legal obligations by terminating the accounts in question, the individual infringers would have been punished and Cox would have avoided violating the DMCA.

      The corporate arrogance Cox has displayed by knowingly attempting to circumvent laws they found inconvenient is shocking and foolish.

      Reply
      • Name2

        The court ruling clearly indicates that Cox was obligated under the DMCA to cooperate with efforts to hold the actual copyright infringers accountable by terminating their accounts.

        Actually, the judge unilaterally ruled that Cox failed to meet DMCA’s vague standards of termination policy. The jury then found infringement.

        There was not a whole lot of discretion left in the jury’s hands after that Rightscorp-friendly ruling. That ruling (and the one prohibiting the word “extortion”) will probably be enough to justify the expense of an appeal. It’s not just dollars and cents on a balance-sheet here, but the right of service providers to not be extorted by copyright trolls. It’s a fight worth having, but probably not one Cox is going to take up alone.

        Reply
        • Anonymous

          Cox knew about the infringement and ignored it. That’s why they lost. Rightscorps had nothing to do with this lawsuit. You look silly pretending they did.

          Reply
          • Rick Shaw

            The entire legal effort looks pretty silly by not going after the people who actually did the illegal infringing.

          • Anonymous

            Yeah? So you can then post some hysterical bullshit about Grandmas getting sued? Your shit is stale dude. Nobody’s buying it anymore.

          • Rick Shaw

            So, it is “Grandmas” who are perpetrating the crimes? Get real.

          • Bag of Douche

            BMG did attempt to hold the actual infringers directly responsible, and Cox obstructed those efforts. The court effectively ruled that Cox’s obstructions were illegal.

            But, those facts don’t seem to fit into your narrative, so by all means.. please continue to ignore them.

          • Moron

            Anonymous

            Cox knew about the infringement and ignored it. That’s why they lost. Rightscorps had nothing to do with this lawsuit. You look silly pretending they did.

            That’s just funny.

            Closing out 2015 with a bang.

  9. pbody

    Now a few examples of ruthless pirates being jailed will have to be given. This should happen quickly.

    Reply
  10. Robert Jensen
    Robert Jensen

    You would think a case like this would get more press as it pretty much concerns everyone who uses the internet.

    Reply
  11. Musicservices4less

    I welcome and fully applaud this decision. I am holding off my celebration though as the legal system has not run its course yet. There will be an appeal and not a settlement at this stage. I am pretty sure if the appeal(s) will go all the way up to the Supreme Court and whether they may or may not take the case. Let’s hold off the “legal” celebration as there is more to come.

    Reply
    • Anonymous

      There is zero chance this goes to the Supreme Court. They are not going to waste their time listening to Cox try to spin their blatantly egregious behavior.

      Reply
      • Musicservices4less

        Point of Information: No doubt the Supremes would not take this case (if it even gets that far) on the clearly bad behavior of Cox. Most appeals are not based on the facts of a case but on an error of law. We do not know yet if Cox will find an error worth appealing. Quite frankly if you have the money that is pretty easy for most lawyers to find. I believe they have 30 days after entry of the judgment and that can be extended by the judge.

        Reply
      • Clarification

        Point of Information:

        The SCOTUS won’t HAVE to take this case, becaase it likely won’t get that far, on the clearly erroneous rulings by the Judge. Not saying Cox is right but, Judge O’Grady is a loose cannon who made a bunch of highly questionable rulings in this case. It is unbelievably ripe for appeal – and likely remand.

        Reply
  12. COPYRIGHTTROLL101

    LOL here is a different point of view about the same story https://www.techdirt.com/articles/20151202/09193532969/details-why-judge-ogrady-rejected-coxs-dmca-defense-bad-decisions-cox-may-lead-to-bad-law.shtml. BTW an IP Address does not IDENTIFY the infringer. I got an envelope on the mail forwarded by Comcast from some company claiming I downloaded a movie called Kumba<<<Never heard of it lol I have a 4 year old and a 10 year old, both always on youtube they don't know how to download anything. The wife still has a flip phone lol. I don't care for TV, everything on nowadays is just so stupid, I can't watch it its painful. Instead I like to read. Anyways in the letter I received there are some serious threats about how I'm guilty and WILL be held accountable for downloading this movie. They ask to contact them to make sure is taking care of ASAP LOL There is a name for companies like this "COPYRIGHT TROLL" just google the company Rightscorpt and you will understand it better like i DO now.

    Reply

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