The Issue
BMG rights management sued Cox communication for the alleged copyright infringement to hold its contributory responsibility for restricting BMG’s copyright by Cox’s internet services. The jury declared that under section 512 (a) of the digital millennium copyright act (DMCA), 17 USS 512 (a), Cox is guilty because it does not have the right to the safe harbor defense against copyright infringement charges (Zazi, 2018). Thus, the jury found Cox guilty of willingly contributory infringement and instructed the company to pay BMG statutory damage of $25 million (Trimble, 2017). Furthermore, the court determined Cox’s knowledge about the infringing activity using its willing blindness and consciously avoiding responsibility for the copyright violation.
The Rule
According to the DMCA, IPS stores the copyrighted material and is liable for removing material or the item claimed to be infringing. The removal is based on the evidence of infringing activity, regardless of whether the material is infringing or not. The DMCA provision in copyright infringement distinguishes three categories: activity mere occurrence, actual occurrence, and the activity (Zazi, 2018). The distinction between the activity and the infringing activity in the 512 (a) shelters IPS from the liability for pulling down material without a court determination.
Application
Cox, a conduit internet service provider, has over 4.5 million subscribers who utilize high-speed internet streaming for a monthly subscription. Cox subscribers receive copyright files, including music files using the Bit Torrent platform. Bit Torrent is a subscription tool that allows individuals to virtually transfer files from other computers (Trimble, 2017). As a conduit of ISP, Cox does not provide internet access to its subscribers. Hence, they seek services from other companies to allow them to operate. However, Cox does not create or sell software that runs with the Bit Torrent protocol, which becomes an infringing material on its computer software.
BMG is a music company that owns the music copyright and has the right to protect its material. As a result, BMG hired the services of Bit Torrent to determine the allegations of infringers sharing its client’s copyrighted work (Bridy & Keller, 2017). When Bit Torrent identifies unlawful sharing, it transmits an infringement notice to the infringer’s ISP. The note contains the legal owner of the material, title, infringer’s IP address, time. In the case of Cox, Rightscorp sent them many settlement notices, but the company ignored the emails. In 2011, Cox block listed Righstcorp, meaning that it did not act on the emails or even delete them without opening them (Zazi, 2018). On November 26, 2014, BMG initiated legal action against Cox where it accused Cox of copyright infringement by its subscribers.
The Decision
At the discovery of the copyright issues against Cox, BMG decided to file the multiple problems motion across the summary of the jury declaration, which sought a carefully written opinion. Firstly, BMG claimed that Cox did not attempt to defend itself against violation of the Digital Millennium Copyright Act (DMCA), 17 USC, 512 (a). However, to qualify for safe harbor, Cox must adopt and implement a policy that terminates its contract with its subscribers, the alleged infringers. Similarly, the court validated the evidence presented by BMG and granted a judgment to allow Cox to seek safe harbor defense. Secondly, at the end of the trial, the court held Cox liable for causing, damaging, and contributing to the infringing activities against the BMG copyrighted material. Lastly, the jury fined Cox $25 million payable to BMG under the statutory damages.
References
Bridy, A, & Keller, D (2017). U.S. copyright office section 512 study: Comments in response to the second notice of inquiry. Web.
Trimble, M. (2017). The middleman-intermediary liability: United States. Web.
Zazi, J. (2018). BMG Rights Mgmt. (US) LLC v. Cox Communication. Inc. Intell. Prop. & Tech. LJ. 23(49).