James Delahunty
7 Dec 2014 7:40
Cox Communications was sued last week by two music publishers for not terminating customer accounts when they are declared repeat offenders by Rightscorp.
At the core of the lawsuit filed by BMG and Round Hill is the assertion that Cox has no protection under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) of 1998. The DMCA's safe harbor provisions protect intermediaries from some copyright litigation as long as procedures are followed to qualify for them.
From BMG and Round Hill's perspective, Cox is not following the procedures and therefore is not entitled to use the safe harbor provisions as protection.
What is Cox Communication's failure according to the lawsuit? It alleges that Cox has failed to terminate customers' accounts when Rightscorp accuses them of being repeat infringers of copyright. That, it alleges, makes Cox liable for copyright penalties and it wants a federal court to declare as much.
The Electronic Frontier Foundation (EFF) has analysed the lawsuit and finds it lacking merit, to say the least. DMCA safe harbor provisions do not require that ISPs terminate users based on a mere accusation of infringement, or indeed even many accusations, according to the EFF. Rightscorp, it said, does not provide any evidence of the customer being a repeat infringer of copyright, and it doesn't disclose the means by which it identified the user.
"It's frightening to contemplate a world where mere accusations of infringement are enough to get an Internet account and everyone who depends on it thrown off of the Internet," writes Mitch Stolz, staff attorney at the EFF.
Stolz goes further to argue that Cox doesn't even need the protections afforded to it as an Internet intermediary under the DMCA in this particular case, because it does not aid its customers in infringing copyrights, nor can it be shown to encourage piracy. All it does is provide access to the Internet of the accused.
You can read more of Stolz' analysis at Eff.org, and also read the test of the lawsuit there if you wish.
Even though it appears that the publishers don't have much of a case against Cox, it does show how entertainment companies are increasingly focused on Internet Service Providers in their attempt to fight Internet piracy.