Cox Sees Backing in Torrent Piracy Lawsuit Appeal

CTA and the Computer & Communications Industry Association (CCIA) had jointly filed an amicus (see 1611140057). Counsel for BMG didn't comment Tuesday.

The summary judgment to BMG on Cox's safe harbor defense forces ISPs to restrict Internet access "based on nothing more than unproven allegations of copyright infringement in the form of invalid DMCA notices," USTelecom said. Copyright holders and their agents have been abusing DMCA with stacks of unverified infringement allegations, and the U.S. District Court in Alexandria, Virginia, ruling gave credence to the abuses by treating multiple allegations against a user as proof of repeat infringing, the association said. It called for reversing the safe harbor protection denial because the lower court erred when it said Cox knew of infringement from Rightscorp DMCA notices when Cox had no ability or obligation to investigate or respond to those infringement allegations.

The lower court ruling "creates troubling precedent" about what ISPs must do when getting stacks of notices of alleged infringement from an entity -- like Rightscorp in the BMG case -- that has a financial stake in serving as many of those notices as it can, the American Cable Association said. The district court also wrongly assumed Cox was able to look at users' activities or conduct and discover if copyright infringement were occurring -- something Cox actually couldn't do, ACA said. It argued the court ignored the wording and congressional intent of DMCA Section 512(m), which clearly stated ISPs aren't obliged to investigate claims of alleged infringement.

Without a reversal, ISPs receiving "unverified, machine-generated infringement claims from profit-seeking agents of copyright holders" will likely move first to shut off Internet service to users, the Internet Commerce Coalition (ICC) said. The DMCA was unambiguous that statutory safe harbor wasn't conditioned on ISPs taking or acting on copyright infringement notices, nor do they lose it by the assertion they should have known infringing material was being transmitted through their systems, ICC said. While other DMCA safe harbors were conditioned on processing and complying with infringement notices, Congress' treatment of conduit ISPs reflects that they don't store content or do so only for an instant, it said.

Public Knowledge, the Electronic Frontier Foundation and the Center for Democracy and Technology -- while not supporting either side -- filed a joint brief arguing for an interpretation of DMCA's requirements to internet access in response to copyright infringement that is based on the idea such termination should only come "in the most extenuating circumstances." DMCA Section 5129(i), covering such terminations, was designed to be flexible so ISPS could narrowly tailor terminations because of the consequences of ending internet access stops far more than just the infringing activity, and the lower court's suggestions otherwise were wrong, Public Knowledge and the others said. The 4th Circuit should make clear that "repeat infringers" applies only to subscribers who themselves are liable for infringement, and not those whose accounts were being used by third parties such as a family or household member for infringement, they said.

A group of educational and library associations similarly argued against the court's approach of a uniform repeat infringer policy, saying it could require libraries and schools to harmfully restrict web access. Section 512(i) regarding safe harbors and termination deliberately doesn't go into how to terminate the accounts of repeat offenders, since service providers as defined by DMCA runs the gamut from large corporations to small nonprofits, the group said. Signing the brief were the American Council on Education, Association of American Universities, Educause, American Library Association, Association of Research Libraries, Association of College & Research Libraries, National Association of Independent Colleges and Universities and others.