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Author Topic: BMG v Cox, losing DMCA safe harbor for insufficient policy on infringers  (Read 3472 times)

Engel Nyst

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In this case, BMG sued Cox for infringements made by Cox's users, and is winning, at district court level. The essence of the story is that Cox apparently knew that some users were repeat infringers, and didn't hesitate to ban them but also to reinstate their accounts. The emails from Cox employees seem what was most damning here. Examples quoted in the articles below:

http://arstechnica.com/tech-policy/2015/12/rightscorp-wins-landmark-ruling-cox-hit-with-25m-verdict-in-copyright-case/

http://the1709blog.blogspot.se/2016/08/judgment-against-cox-opens-up-isp.html

Apparently, Rightscorp was BMG's enforcement agent, and reported many of these user accounts; while Cox seems to have conformed to the *letter* of the DMCA, and take down material, then after repeated take downs, suspend accounts, and then, it also reinstated those accounts. It seems it was doing so while talking internally about a "semi unwritten policy" of reinstating any alleged repeat infringer.

The latest of these links presents some declarations of Rightscorp, which wasn't a party of this case, but which touts the win as a win of what they "kept saying":

Quote
"For nearly five years, Rightscorp has warned US internet service providers (ISPs) that they risk of incurring huge liabilities if they fail to implement and enforce policies under which they terminate the accounts of their subscribers who repeatedly infringe copyrights." adding "Over that time, many ISPs have taken the position that it was simply impossible for an ISP to be held liable for its subscribers’ actions – even when the ISP had been put on notice of massive infringements and supplied with detailed evidence.  "Although Rightscorp was not a party in this case, we are delighted with the outcome. The Federal District Court declared the liability of ISPs to be precisely what Rightscorp has been saying it is for years," said Rightscorp CEO Christopher Sabec.

The first decision was in 2015:
http://cyberlaw.stanford.edu/blog/2015/12/bmg-v-cox-high-cost-losing-safe-harbor

Engel Nyst

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More here:
http://www.dailyherald.com/article/20160820/business/160829954/

The brief submitted in the case by Public Knowledge:
https://www.publicknowledge.org/documents/brief-bmg-v-cox

One of the questions raised by this mess is: since when is a user that has received takedown notices a "repeat infringer"? Notices are not conclusive proof of infringement. What's to stop Rightscorp to send a huge bunch of notices just in case, and then claim that somehow mysteriously all who don't fight them are "repeat infringers"?
« Last Edit: August 20, 2016, 03:25:34 PM by Engel Nyst »

 

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