Notable Case: BMG Rights Management v. Cox Communications

The Digital Millennium Copyright Act was intended to solve problems created by new technology. The copyright law of the United States was adopted before inventions such as computers and the internet were common household technology. The Digital Millennium Copyright Act adjusted United States Copyright Law in an attempt to make it more modern.

One of key points of the Digital Millennium Copyright Act was the safe harbor provision for Internet Service Providers. Internet Service Providers provide their customers with connections to the internet. Typically Internet Service Providers do not monitor what their customers do with their internet connection. Customers could use their internet connection to distribute copyrighted works. Internet Service Providers were concerned that they would be constantly sued for contributing to their customer’s wrong doing. Whether or not the Internet Service Providers won the case, it would be very expensive and unfair for an Internet Service Provider to defend lawsuits for copyright infringement committed its customers.

The safe harbor provision of the Digital Millennium Copyright Act gives Internet Service Providers immunity from liability for the actions of customers. But this immunity is not guaranteed. An Internet Service Provider must meet certain conditions to be granted immunity. Section 512(i) outlines the general requirements for a grant of immunity– Internet Service Providers must implement an account termination policy for repeat infringers, must inform their users of this policy, and must accommodate standard copy protection systems.

Many copyright owners have complained that the Digital Millennium Copyright Act Safe Harbor provision is too vague and that Internet Service Providers should be held accountable if they are aware of their user’s copyright infringement.

A case which illustrates an Internet Service Provider being denied Safe Harbor protection is BMG Rights Management v. Cox Communications. BMG Rights is a major music distributor. Cox Communications is a major internet service provider in the United States. BMG Rights sued Cox Communications for copyright infringement and asked the court to deny Cox Safe Harbor protection because Cox did not attempt to fulfill the requirements to be granted immunity. Cox argued that it did have a policy, the policy allowed 13 allegations of copyright infringement because a customer would have their account shutdown.

In its February 1, 2018 decision in BMG Rights Management (US) LLC, et al. v. Cox Commc’ns et al., No. 16-1972 (4th Cir. 2018), the U.S. Court of Appeals for the Fourth Circuit affirmed the denial of Cox Communication’s eligibility for Digital Millennium Copyright Act (“DMCA”) Safe Harbor protection. Specifically, the Court agreed that no reasonable jury could find that Cox was entitled to DMCA Safe Harbor protection in light of its relaxed and loosely enforced repeat infringer policy, which failed to meet the requirements of 17 U.S.C. § 512(i). The court ruled that Cox had lost its safe harbor, not because its termination policy was too lenient, but because it failed to implement its own policy. The court pointed to instances where Cox called customers, threatening to terminate service because of copyright infringement violations and then Cox did not terminate service. The court did not say that Cox’s copyright infringement policy was not acceptable, merely that because the policy was enforced Cox could not claim safe harbor protection.

The clear take away from this case is that Internet Service Providers must set a policy regarding copyright infringement, clearly communicate it to their customers, and enforce the policy. For now the courts are not going to dictate what the policy must be.

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