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3 January 2017Copyright

BMG bites back at Cox Communications appeal

Music company BMG Rights Management has hit back at an appeal filed by internet service provider (ISP) Cox Communications against a copyright infringement ruling.

In December 2015, a US court ordered Cox Communications to pay $25 million in damages after it failed to introduce an anti-piracy mechanism in its service.

A jury at the court ruled that Cox was liable for direct and contributory copyright infringement in its dispute with BMG, and that it had wilfully infringed BMG’s copyright.

The month before, the court had disqualified the ISP from safe harbour status under the Digital Millennium Copyright Act, which protects ISPs from claims of infringement if they are able to demonstrate that they are tackling the unauthorised distribution of copyright-protected material.

Then, in August last year, WIPR  reported that Cox Communications had announced its intent to appeal against the decision. It filed its appeal in November.

On December 30, 2016, BMG filed its response (pdf) to the appeal at the US Court of Appeals for the Fourth Circuit.

BMG claimed that Cox Communications, in its appeal, didn’t address the conduct for which it was found liable.

“Instead, Cox proposes radical reinterpretations of both contributory infringement law and the DMCA that have never been accepted by any court and that would immunise Cox and its fellow conduit ISPs from secondary liability for online copyright infringement,” said the response.

BMG had previously argued that Cox’s failure to terminate customer accounts known to be distributing pirated material through peer-to-peer networking meant that it did not qualify for the safe harbour.

The music company added that Cox Communications was now arguing that the DMCA “provides blanket immunity unless it fails to terminate subscribers who have been adjudicated repeat infringers in court”.

According to BMG, this interpretation is incorrect, given that “no court has adopted this reading” of the DMCA and that it is at odds with the “plain language of the statute”.

This position would also “contravene Congress’s express intention to preserve strong incentives for copyright holders and ISPs to work together to address online copyright infringement without litigation”, claimed BMG.

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