The policing of digital copyright infringers has been revolutionized in recent years as companies such as Santa Monica’s Rightscorp Inc. deploy automated software programs to trawl for online offenders and send out millions of violation notices through internet service providers.
Rightscorp’s violation notices – and how ISPs handle them – were at the heart of a $25 million verdict leveled against Cox Communications by a Virginia federal jury that was affirmed by a judge earlier this month. In a copyright infringement case brought by Mid-Wilshire-based BMG Rights Management, Cox was found liable for failing to shut off repeat infringers’ Web access despite Rightscorp’s notices.
Internet service providers have traditionally been able to avoid liability under the so-called safe-harbor provision of the Digital Millennium Copyright Act, which mandates that rights holders send take-down notices to ISPs for each alleged infringement. ISPs are then required to pass along notice to infringing customers and shut off access if infringement persists. The judge in the Cox case found, “There was sufficient evidence that Cox deliberately looked the other way and, at a minimum, had reason to know its users were infringing on BMG’s works.”
BMG President Zach Katz said in a statement he felt the decision validated copyright holders’ efforts to combat piracy.
“This ruling shows that we need to put the rights of songwriters at the forefront,” he said. “Finding a business solution for rampant infringement is an issue we’re taking head on at BMG.”
As a trial court verdict, however, the decision does not set precedent. The case is under appeal, but some internet civil rights activists are concerned that particulars of Cox’s case could lead to bad law.
“The facts, frankly, are pretty bad for Cox,” said Mitch Stoltz, a senior staff attorney in the San Francisco office of the Electronic Frontier Foundation. “The question on appeal is: What’s the legal rule?”
Stoltz said that rather than adopt a rule that weakens protections for all internet service providers, the appellate court could narrowly find that Cox didn’t have an internal policy to deal with repeat copyright infringers or, if it did, that it wasn’t followed.
“Stepping away from this case, there’s a lot of pressure from entertainment companies to gut the protections afforded internet users and intermediaries (such as Cox),” Stoltz said.
Copyright questions
The verdict in the Cox case comes at a time when a wholesale re-evaluation of the DMCA and copyright enforcement is looming. The U.S. Copyright Office is in the middle of formal period during which it is accepting comment on the act. Debates about the law’s applicability and efficacy in the transforming tech environment are legion, according to Mitchell Kamin, a partner in Covington & Burling’s Century City office who represents companies including Universal Music Group and Sony Music Entertainment in intellectual property matters.
“The music industry and copyright holders are certainly pushing to limit the safe-harbor provision,” Kamin said. “They feel companies on the tech side of things get all the love. It will be interesting to see if policymakers see this case as a way to address some of the issues with the DMCA.”
He also said the case serves as a warning to internet service providers that they need to have strong protocols in place to handle copyright infringement notices from rights holders and deal with repeat offenders.
“The case is a good cautionary tale for internet service providers who would be well-served to take stock of their internal policies,” he said. “Rights holders are probably emboldened to test the waters right now.”
