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Attorneys

ISPs That Ignore Notices From “Copyright Trolls” Risk Losing DMCA Safe Harbor Protections

November 30 2015

By: Scott M. Hervey

Representing copyright owners attempting to enforce online infringement is often routine, but can sometimes prove challenging. This tends to be the case when a content owner is trying to address large scale infringement of one or multiple works. Most often ISPs are cooperative, but on occasion an ISP may resist responding to a content owner when the owner is represented by an organization like Rightscorp — often referred to as “copyright trolls.” Based on the recent ruling by the Eastern District Court of Virginia against Cox Communications, an ISP is taking a huge risk ignoring infringement notices sent by Rightscorp or any similar organization.

In December of 2014, music publishers BMG Rights Management US, LLC and Round Hill Music LP sued Cox Enterprises Inc. for contributory and vicarious copyright infringement. In the complaint the music publishers allege that the ISP waived its immunity from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”) by disregarding numerous takedown notices sent on their behalf by their agent, Rightscorp, and otherwise failing to terminate the accounts of repeat infringers.

The DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty and to update domestic copyright law for the digital age. In particular, the DMCA established a series of four “safe harbors” that allow qualifying Internet service providers to limit their liability for claims of copyright infringement based on (a) “transitory digital network communications,” (b) “system caching,” (c) “information residing on systems or networks at [the] direction of users,” and (d) “information location tools.” 17 U.S.C. §§ 512(a)-(d). To qualify for protection under any of the safe harbors, the ISP must, among other requirements, adopt and implement a “repeat infringer” policy that provides for the termination of account holders.

In its complaint against Cox, the music publishers claimed that Cox had not taken sufficient steps to deter hundreds of thousands of its subscribers from using its service to engage in wide scale copyright infringement. In particular, the music publishers claimed that since 2012, they provided Cox with notice under the DMCA of specific Cox subscribers using the Cox system to infringe specific copyrights, and requested Cox to terminate the accounts of those subscribers that were repeat infringers. The music publishers claimed that despite Cox’s actual knowledge, Cox refused to terminate the accounts. In the complaint, the music publishers stated that Cox was informed of over 7 million repeat infringements by over 200,000 Cox subscribers.

In a motion for summary judgment filed by Cox in September, Cox essentially argued that it was excused from taking any action based on the publishers’ notices because of the involvement of Rightscorp. Cox argued that Rightscorp (which Cox refers to as a “copyright monetization business”) is the “central character in this story.” According to Cox, Rightscorp makes money by (1) threatening litigation against Internet account holders on behalf of other companies; (2) enticing account holders who receive its threats to pay low-dollar settlement amounts to resolve a first claim of infringement; (3) harassing those persons for additional money through spam, robocalls, and fraudulent telephone calls; and (4) keeping half the money it collects. Cox stated in its motion that it considers the notices it received from Rightscorp to be outside of the DMCA and therefore it “refused to accept or forward the infringement notices to its customers.”
Cox’s failure to act may have been what opened it up to potential liability. The notices that Cox refused to accept or act upon were also DMCA takedown notices. On the same day that Cox filed its motion, the publishers filed their own motion claiming that Cox didn’t meet the requirements to use a safe harbor defense under the DMCA. The publishers claimed that Cox failed to adopt and implement a policy for terminating the account of repeat infringers. The publishers claimed that despite its published terms of use, “Cox’s actual policy is to refuse to … penalize subscribers that repeatedly commit copyright infringement through its network in any meaningful numbers.” The publishers claimed that since at least 2012 they provided Cox with sufficient notice under the DMCA of more than 7 million instances of repeat infringement by more than 200,000 specific subscriber accounts, but Cox had not terminated those accounts or forwarded the notifications to the subscribers.

In ruling on the publishers’ motion, the court stated that “[t]here is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as is required by [the DMCA’s safe harbor provision],” and as a result, Cox is not shielded from copyright liability under the DMCA. What this means is that the publishers’ claims of copyright infringement against Cox are going to trial.