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 revolves around data gathered by Rightscorp and Cox believes that the anti-piracy company is the driving force behind it, in part to retaliate for Cox’s refusal to forward their infringement notices.
The case is scheduled to go to trial soon but Cox hopes to avoid that. The company has now submitted a motion for summary judgment (pdf) in which it explains why the copyright holders don’t have a case.
For one, Cox explains that there is no evidence of any relevant actual direct infringement. Rightscorp’s system is flawed, they claim, and the IP-addresses could be used by persons other than the account holders.
“Plaintiffs made no effort to determine whether Cox account holders personally committed any infringements, and they cannot tie IP addresses to specific infringers. Plaintiffs tellingly but wrongly argue it is ‘not required for [them] to prove direct infringement’,” the lawyers write.
Cox cites several cases in which judges concluded that IP-addresses are not a person, and notes that the same applies here. In addition, the ISP argues that there is no evidence in support of contributory infringement or vicarious liability either.
Moving on, Cox says that the copyright holders have “unclean hands” because they turn a blind eye to misconduct by solely relying on Rightscorp, “whose business rests on extortion and falsehoods.”
The ISP highlights an interesting element of Rightscorp’s practice. To track down infringers the monitoring outfit has downloaded thousands of files themselves, without permission from all copyright holders.
“In its work for Plaintiffs Rightscorp downloaded files of thousands of sound recordings over the BitTorrent protocol, evidently to create evidence of infringements over Cox’s network. But copyrights in sound recordings are separate from copyrights in musical compositions.”
Indeed, the companies Rightscorp works for often only own part of the rights, those held by the composer of a track for example. This means that the company doesn’t have permission from all copyright holders involved.
Technically, Rightscorp may rely on “fair use,” but if that’s the case then the alleged downloaders may use this as a defense as well.
“Rightscorp either committed massive infringements of the sound recording copyrights or must have relied on the fair use doctrine. If the latter, that fact is an admission that activity over BitTorrent may constitute fair use, but there is no evidence that Rightscorp considered the possibility of fair use in generating millions of notices of claimed infringement,” Cox lawyers add.
Cox goes on to highlight that Rightscorp targets elderly and disabled consumers, instructing its employees to disregard protests from alleged infringers.
“When a consumer denies infringement, the phone script instructs the enforcer to state that the consumer must obtain a police report, and that the police may ‘take your device and hold it for ~5 days to investigate the matter’.”
Finally, Cox highlights that the copyright holders have failed to directly address the alleged damage downloaders are causing. Instead of sending takedown notices to torrent sites asking them to remove infringing content, Rightscorp relies on these torrents to conduct its business.
“Far from seeking their removal, Rightscorp uses these .torrent files, tolerates them, and relies on their availability on the Internet in order to set up its enforcement and shakedown scheme,” Cox writes.
“Plaintiffs’ failure to mitigate their actual damages, through simple and reasonable steps available to them, reduces or bars entirely their claims for relief based on statutory damages,” they add.
It is now up to the court to decide whether the arguments presented by Cox are sufficient to issue a summary judgment, or whether the case will proceed to trial.