December 2015 a Virginia federal jury ruled that Internet provider Cox Communications was responsible for the copyright infringements of its subscribers.
The ISP was found guilty of willful contributory copyright infringement and ordered to pay music publisher BMG Rights Management $25 million in damages.
Cox disagreed with the outcome and a few weeks ago the ISP filed its appeal arguing that the district court made several errors that may ultimately restrict the public’s access to Internet services.
The company received support from several industry associations, academic institutions, libraries and digital rights groups, who submitted amicus briefs to the court of appeals voicing their concerns. However, BMG is not fighting alone.
Late last week, several copyright industry groups, including the RIAA, MPAA, and the Copyright Alliance, rallied behind the music rights group.
The submissions, which total roughly 150 pages, all stress that the current verdict should be upheld. ISPs such as Cox should not be able to enjoy safe harbor protection if they fail to disconnect “repeat infringers” from their networks, BMG’s supporters say.
The MPAA stresses that the District Court made the right decision by holding Cox liable. They stress that online piracy is a massive problem which copyright holders can’t handle without the proper legal tools to hold intermediaries such as Cox accountable.
“Online piracy accounts for a full quarter of all internet traffic and costs the entertainment industry tens of billions of dollars per year,” the MPAA writes in its brief (pdf).
“…it is simply not feasible to combat the epidemic of online infringement unless copyright-holders have the legal tools to incentivize the cooperation of intermediaries like Cox and to hold them accountable when they knowingly facilitate widespread online infringement.”
One of the central elements in this case is the “repeat infringer” question. Under the DMCA, ISPs are required to have a policy to disconnect persistent pirates, but both sides differ on their interpretation of the term.
In its defense, Cox said that only courts can decide if someone is an infringer. Otherwise, people will be disconnected based on one-sided allegations from copyright holders, which remain untested in court.
However, the MPAA, RIAA and other rightsholder groups believe that regular takedown notices should count as well, noting that earlier court verdicts made this clear.
“If Congress meant that a subscriber should have been sued in court, had a judgment entered against her, and failed to overturn that judgment on appeal — multiple times — before facing even the threat of losing internet access as a repeat infringer, it would have said so,” the RIAA writes in its brief (pdf).
In a situation where repeat infringers only lose their Internet subscriptions following a court order, copyright holders would have to launch massive legal campaigns in the U.S. targeting individual file-sharers.
That would result in an unworkable situation which runs counter to the purpose of the DMCA, the RIAA argues.
“Under Cox’s interpretation, copyright owners would be forced to launch demanding campaigns of multiple lawsuits against every individual infringer even to hope to obtain the benefit of ISP repeat-infringer policies.
“That would require a stream of individual lawsuits in federal district courts all over the country, imposing an additional burden on the courts and draining the resources of copyright owners and individual subscribers alike,” the RIAA adds.
Siding with BMG, the copyright groups ask the appeals court to keep the district court ruling intact. This runs counter to Cox’s request, which asked the court to reverse the judgment or grant a new trial.
The recent amicus briefs illustrate the gravity of the case, which is shaping up to be crucial in determining the future of anti-piracy enforcement in the United States. As such, it would be no surprise if the case goes all the way to the Supreme Court.