Should internet providers be held liable when its users illegally download content?
“In this copyright action, the putative owners of more than 1,400 musical composition copyrights seek to hold Cox Communications, Inc. and Cox Com, LLC (collectively, “Cox”) contributorily and vicariously liable for alleged copyright infringement taking place over its high-speed internet service.”
With those words, the court’s opinion in the case against Cox Communications for copyright violations — theft of music — began. It’s a potentially precedent setting case: A cable company that provides internet service being sued because users of the service pirate music file, using BitTorrent.
As the case has worked its way through the courts, Cox has been on the losing side so far. One court granted a verdict to BMG (the label behind the lawsuit) of $25 million dollars for digital piracy rights, representing artists like Bruno Mars and David Bowie.
This case presents the question of whether a conduit internet service provider may be held liable for the infringing activity of its subscribers based on the uploading and downloading of copyrighted musical works using BitTorrent, a peer-to-peer file sharing network. — Filing in US District Court in Alexandria, Virginia
Safe Harbor
Cox’s user policy prohibits its customers from doing that. Cox, in its rebuttal to the charges, cites the DMCA “safe harbor” defense. Section 512(a) provides a safe harbor for service providers that provide a service that is a conduit for transmission of content.
“Cox is a conduit service provider,” O’Grady said in his ruling. “It provides approximately 4.5 million customers in the United States a connection (or a ‘pipeline’) to the internet. Cox’s relationship with its subscribers is governed by Acceptable Use Policy (AUP). The AUP reserves the right to suspend or terminate customers who ‘use the service to post, copy, transmit or disseminate any content that infringes on patents, copyrights, trade secrets, trademark, moral rights or proprietary rights of any party.” — Fierce Cable
There’s an exception to the safe harbor though if the company doesn’t have in place a policy that reasonably terminates providing the service to repeat offenders. In this case, the company the music owners hired claims they sent more than 2.5 million notices to Cox showing internet users were offering illegal copies of the music for distribution.
Cox says it does and elaborated on its policy and procedures for repeat offenders. The music copyright holders says it’s not enough.
Cox was trying to get the court to toss the case on summary judgment. The 4th circuit decided to let the case move forward.
The industry is watching the case carefully. The stakes are enormous. If a internet service provider is liable for its users illegally downloading copyright material, it could change the landscape of the internet.
