Defining Repeat Infringers Core of BMG-Cox Torrent Piracy Appellate Fight
Cox Communications' stance that to be a repeat copyright infringer one first has to be adjudicated as an infringer would torpedo incentives for ISPs to help combat infringement even when they know such infringement is going on, multiple groups said in amicus curiae briefs siding with BMG Rights Management filed Friday with the 4th U.S. Circuit Court of Appeals. Various public interest, educational and library groups filed amicus briefs in November supporting Cox's appeal (see 1611150049) of a $25 million torrent piracy verdict (see 1608090047). Cox didn't comment Monday; its reply brief is due Jan. 27.
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The repeat infringer definition is far from settled law, making the case a major opportunity for the court to opine whether an accusation is enough for someone to be considered an infringer or if there needs to be other indications, Georgetown Law Center professor Rebecca Tushnet told us. She said that murkiness could make it an uphill battle for any eventual 4th Circuit decision to go to the Supreme Court, since there isn't a full split on the issue.
"Cox has no valid basis to support its claim the term should be limited only to adjudicated infringers," since that veers from Digital Millennium Copyright Act (DMCA) text, other statutory provisions using the word "infringe" and legislative history, RIAA said in its brief (in Pacer). It said such an interpretation would have ISPs delay on acting on infringement, while copyright holders would need to get multiple legal judgments against individual users before providers would start following their obligations, RIAA said. It backed the lower court's summary judgment favoring BMG on Cox's safe harbor defense, saying the cable operator hasn't made a case that an incorrect legal standard was used.
Cox wants to undo the balance Congress struck with the DMCA between the liability of ISPs and the rights of copyright holders, Copyright Alliance said (in Pacer). CA said the Cox argument -- conduit service providers are only liable for contributory copyright infringement if they actively encourage infringement or if they possess "essentially perfect knowledge of specific infringing acts" -- would immunize conduit service providers like Cox from secondary liability. The group said, unlike adopting Cox's narrow repeat infringer definition, holding the firm liable wouldn't be a major legal landscape change or have big policy implications.
Congress created DMCA safe harbors expressly to encourage service providers to work with copyright owners on dealing with digital infringement, but Cox "did exactly the opposite" by ignoring infringement notices and not meaningfully enforcing "even its own risible 'thirteen-strike' repeat infringer policy," National Music Publishers and Nashville Songwriters Association International said (in Pacer). They said there's little incentive for ISPs to act against infringers minus possible legal accountability such as reaffirming the lower court ruling, the music groups said.
Cox's argument that ISPs are immunized from copyright liability by Supreme Court decisions Metro-Goldwyn Mayer v. Grokster and Sony v. Universal City Studios runs completely contrary with the DMCA and would encourage even more copyright infringement, MPAA said (in Pacer). It said Cox would have been insulated from monetary awards if it had taken the statutorily required steps to responding to infringement notices, but instead it's trying to rewrite copyright liability principles.