So, do you remember back in 2014 when BMG and Cox Communications (an Internet Service Provider) were in litigation because Cox was allegedly not in compliance with the safe harbors of the Digital Millennium Copyright Act (DMCA)? Cox was essentially knowingly permitting its customers to use its services to infringe the copyrights of others. The DMCA’s safe harbor provisions shield ISPs from liability for unknown infringement, where they have put procedural safeguards in place to prevent repeat infringement, including the deactivation of a repeat infringer’s internet account. Cox had a procedure, they just didn’t implement it in a meaningful way. There were over 1.87 million instances of infringement of BMG works alone. Judge Liam O’Grady charged the jury that contributory infringement could be found where the defendant knew or should have known about the infringing activity and did nothing to stop it. The jury decided in favor of BMG and awarded them $25 million in damages.
Well, Cox appealed that decision and the 4th Circuit Court of Appeals upheld the lower court’s ruling with regard to the requirements of complying with the safe harbor provisions of the DMCA, but it also reversed the $25 million settlement granted to BMG and is sending the case back to trial. Circuit Court Judge Diana Motz explained that the failure to create and utilize a repeat infringer policy that is consistent and meaningful, is like having no policy at all, thereby forfeiting the shelter of the safe harbor defense.
The battle continues for Cox and BMG and the struggle ensues for ISPs everywhere, who will undoubtedly have a hard time determining whether their policies keep them within the DMCA’s safe harbor defense.
Lerae Funderburg, Esq. is the Managing Attorney at Funderburg Law, LLC, an Atlanta based entertainment law firm. Lerae has almost 10 years of experience in entertainment law in both music law and film law. As an entertainment lawyer and blogger, Lerae keeps her viewers and subscribers up to date with entertainment legal news, especially in the areas of music. If you are local to Atlanta, call and set up a consultation! She would love to hear from you!