Cox Has No DMCA Safe Harbor Protection Judge Rules

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Internet provider Cox Communications may be held liable for the copyright infringements of its subscribers, a Virginia District Court has ruled. According to the court, Cox failed to properly implement a repeat infringer policy and is not entitled to DMCA safe-harbor protection.

Last year BMG Rights Management and Round Hill Music sued Cox Communications, arguing that the ISP fails to terminate the accounts of subscribers who frequently pirate content.

The companies, which control publishing rights to songs by Katy Perry, The Beatles and David Bowie among others, claim that Cox gave up its DMCA safe harbor protections due to this inaction.

The case is scheduled to go to trial before a jury next month, but an order just issued by District Court Judge Liam O’Grady already puts the Internet provider at a severe disadvantage.

In his order Judge O’Grady ruled on a motion for partial summary judgment from the music companies, which argued that Cox has not met the requirements for safe harbor protection under the DMCA.

Although Cox does have a policy to disconnect accounts of pirating subscribers, it discarded the copyright infringement notices from the plaintiffs. These notices are bundled with settlement requests, something Cox likens to harassment.

After reviewing the arguments from both sides Judge O’Grady has sided with the copyright holders, as HWR first reported.

“The court grants the motion with respect to defendant’s safe-harbor defense under the Digital Millennium Copyright Act (DMCA). The is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as is required…,” the order (pdf) reads.

Judge O’Grady’s order

The judge has yet to publish his full opinion motivating the decision and we will follow this up as soon as it’s handed down. However, the ruling makes it clear that Cox is in a very tough spot.

DMCA safe-harbor is a crucial protection for ISPs against copyright complaints. Aside from the liability Cox faces in the case, it also suggests that ISPs should disconnect subscribers solely based on accusations from copyright holders, which affects the entire industry.

Judge O’Grady, who’s also in charge of the criminal case against Megaupload and Kim Dotcom, doesn’t appear to be concerned about any collateral damage though.

Techdirt reports that he previously lashed out against the EFF and Public Knowledge, which submitted an amicus brief in support of Cox.

“I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time,” O’Grady said, rejecting the brief.

“Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.”

To be continued.

Update: EFF Senior Staff Attorney Mitch Stoltz shared the following comment with TorrentFreak, responding to the safe-harbor decision.

“While the judge hasn’t explained the reasons behind his decision yet, it has the potential to encourage more shakedowns of Internet subscribers by Rightscorp and others. Cox shouldn’t be penalized for protecting its customers against abuse.”

“Regardless of last week’s ruling, Cox should prevail in this lawsuit. No court has ever held that simply transmitting data, without more, amounts to a copyright violation.

Source:TorrentFreak

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U.S. GOVT. Reviews Impact & Efficacy of DMCA Safe Harbor ******

 

The U.S. Government has launched a public consultation to evaluate the effectiveness of the

DMCA's Safe Harbor provisions.

The study aims to signal problems with the current takedown procedures and also addresses

the repeat infringer issue that affects ISPs, copyright takedown abuses, and the ever-increasing

volume of DMCA notices.

 

Signed into law by President Bill Clinton in 1998, the Digital Millenium Copyright Act (DMCA)

aimed to ready copyright law for the digital age.

 

 

The law introduced a safe harbor for Internet services, meaning that they can’t be held liable for

their pirating users as long as they properly process takedown notices and deal with repeat infringers.

 

Today, the DMCA is perhaps more in the news than ever before. Just last month Internet provider

Cox Communication was ordered to pay $25 million because it failed to disconnect subscribers whose

connections were repeatedly used to pirate content.

 

In addition, millions of takedown notices are sent out every day while copyright holders and Internet

services openly debate the effectiveness of the current DMCA takedown procedures.

 

To hear the growing concerns from all sides the U.S. Copyright Office has launched a public consultation

in order to evaluate the impact and effectiveness of the DMCA’s safe harbor provisions.

 

“Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process

on large- and small-scale copyright owners, online service providers, and the general public.

The Office will also review how successfully section 512 addresses online infringement and protects

against improper takedown notices,” the Copyright Office writes.

 

Various stakeholders, including the public, are invited to answer a wide variety of questions.

How effective takedown notices are in deterring piracy, for example, how costly the process is,

and whether more should be done to assure that links don’t reappear elsewhere.

 

The latter issue was brought to the forefront recently when Google rejected the idea to ban

entire domain names from its search results, or implement a system that would prevent content from

reappearing under a new URL.

 

The consultation also mentions the “repeat infringer” issue which is a major concern for ISPs.

At the moment it’s not common for Internet providers to disconnect subscribers who repeatedly pirate

content, as there’s no clear definition of what a repeat infringer is.

Demanding a tougher stance, several copyright holders argue that notices without any repercussions

are not going to be very effective.

 

The automated takedown tools which often lead to incorrect removals are raised as well.

The same is true for more serious forms of abuse, where takedown notices are used to silence critics

or stifle free speech.

 

“Service providers and advocacy groups have raised concerns about fraudulent and abusive section

512 notices that may restrain fair use, free speech, or otherwise misuse the notice-and-takedown process,”

the Copyright Office notes.

 

“Some of the concerns arise from takedown notices for content that appears to constitute an obvious fair

use of a copyright work.

Others relate to efforts to remove criticism or commentary—such as negative reviews—under the

guise of copyright.”

 

For their part, copyright holders believe that many Internet services are simply

hiding behind their safe harbor protections. A more proactive stance to deal with various forms of

piracy is required, they argue.

 

Considering the parties involved and the stakes at hand, copyright holders, Internet services and ISPs

will leave no resource untapped to have their views heard.

In any event, the Copyright office will have to plow through a lot of contrasting opinions.

 

SOURCE: https://torrentfreak.com/u-s-govt-reviews-impact-and-efficacy-of-dmca-safe-harbor-160105/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Torrentfreak+%28Torrentfreak%29