BMG v Cox judge expands on his decision to deny ISP a safe harbour

By Chris Cooke | Published on Thursday 3 December 2015

As the much previously reported BMG v Cox Communications case gets underway in the US, the judge overseeing the proceedings has revealed more information about why he decided, before the trial even began, that the latter could not rely on safe harbour protection under American copyright law.

BMG wants internet service provider Cox to be held liable for the copyright infringement of its customers because it failed to take action against users who repeatedly infringed copyright. Unlike all the other big ISPs in the US, Cox is not part of the voluntary Copyright Alert System, via which net providers forward warning letters from rights owners to suspected pirates.

Cox has its own system instead, but according to judge Liam O’Grady that system was inadequate, certainly up to 2012, with the internet company arguably only paying lip service to its obligations under the US Digital Millennium Copyright Act. Based on evidence presented by BMG, including emails between Cox employees, O’Grady basically concludes that the ISP’s primary if unwritten aim was to keep infringing users connected to the net whatever, so it could continue to take said users’ money.

In an email from Cox’s Manager Of Customer Abuse Operations, Jason Zabek, when asked by a colleague whether the company could reconnect a customer who had lost net access due to repeated copyright infringement, he wrote: “It is fine, we need the customers”, and “You can make him wait a day or so if you want. ;-)”.

In another correspondence, he said that once a user had been disconnected and then reconnected, complaints issued by rights owners against the user prior to disconnection should be disregarded. This would mean that as new complaints were filed by content companies, warnings would start being issued to the user all over again, as if no previous action had been taken.

Wrote Zabek: “After termination of DMCA, if you do suspend someone for another DMCA violation, you are not wrong. However, if the customer has a cox.net email we would like to start the warning cycle over, hold for more, etc. A clean slate if you will. This way, we can collect a few extra weeks of payments for their account. ;-)”

Summarising on those emails, O’Grady wrote in his more detailed summary judgement: “The record conclusively establishes that before the fall of 2012, Cox did not implement its repeat infringer policy. Instead, Cox publicly purported to comply with its policy, while privately disparaging and intentionally circumventing the DMCA’s requirements”.

This whole case is most interesting because it centres on the safe harbours that say net firms cannot be held liable for the copyright infringement of their customers providing some system is in place to aid rights owners. The law is generally vague on what that system should be, and how efficiently it should run, and even whether a shoddy system – even a deliberately shoddy system – is acceptable.

However, before the case even got to court, O’Grady seemingly answered that latter question: Cox had a deliberately shoddy system, until 2012 at least, and that is not acceptable. In its defence, Cox questioned whether it actually had a legal obligation to terminate repeat infringers at all, arguing that really it is the courts who should order disconnection, because rights owner complaints against users are not always valid, and a court of law can assess their merits on a case by case basis.

O’Grady did not concur. “Appropriate circumstances [for termination] arise when an account holder is repeatedly or flagrantly infringing copyrights”, he wrote. “Thus, when Cox had actual knowledge of particular account holders who blatantly or repeatedly infringed, the responsibility shifted to Cox to terminate their accounts”.

Elsewhere in the BMG v Cox proceedings, another pre-trial ruling said that Cox could not refer to Rightscorp, the anti-piracy agency employed by BMG, as a “copyright troll”, “blackmailer” or “extortionist”. Cox, and others, have been critical of Rightscorp’s approach, and the content of warning letters it sends to suspected pirates. But, according to Torrentfreak, the ISP has been told that it cannot use such emotive terms to describe the anti-piracy company’s activities in court.