In the lawsuit, music publishing giant BMG Rights Management accused Cox of failing to live up to its obligations under the Digital Millennium Copyright Act. By law, ISPs are supposed to do what they can to stop repeat copyright infringers from continuing to use their networks. If they follow these “safe harbor” guidelines, ISPs are effectively shielded from being held responsible for the bad behavior of their customers.
BMG alleged that, rather than cut off service to known pirates, the cable company “continued to permit its repeat infringer subscribers to use the Cox network to continue to infringe Plaintiffs’ copyrights without consequence.” Thus, according to the plaintiffs, Cox should not be able to claim safe harbor protections.
And earlier this week, a federal judge agreed.
In granting BMG and the other plaintiffs summary judgement [PDF], the judge notes that Cox’s system of dealing with alleged copyright infringers allows customers to be flagged upwards of 14 times for abuse before Cox “will review the full account history and consider termination.”
Compare that to the Copyright Alert System adopted by Comcast and other major ISPs, which earned its “six strikes” nickname by capping at six alerts before an account will be disconnected.
But, notes the court, even with more than a dozen complaints against a Cox customer, “Termination is never automatic, however, and is left to the discretion of Cox employees.” The cable company told the court that it deals with the “vast majority” of cases early on and that they rarely get to the point of taking the “drastic measure” of terminating the account.
Yet the judge ruled that Cox had been overly lenient in allowing repeated appeals and reinstatements of customers’ accounts.
“Cox employees followed an unwritten policy put in place by senior members of Cox’s abuse group by which accounts used to repeatedly infringe copyrights would be nominally terminated, only to be reactivated upon request,” reads the judgment. “Once these accounts were reactivated, customers were given clean slates, meaning the next notice of infringement Cox received linked to those accounts would be considered the first in Cox’s graduate response procedure.”
Why would Cox allow pirates to continue using their broadband accounts? Because disconnecting them would mean fewer dollars in the cable company’s coffers.
That’s not us being cynical. An e-mail from Cox’s Manager of Customer Abuse Operations cited in the ruling instructs employees to “start the warning cycle over” for customers with cox.net e-mail addresses. “This way, we can collect a few extra weeks of payments for their account,” reads the e-mail.
The same executive said in another message that it was fine to reactivate known offenders because “We need the customers.”
There is also the issue with the way that Cox handled DMCA complaints from Rightscorp, the third-party copyright enforcer hired by BMG to deal with alleged pirates.
Rightscorp notices to infringing users include a settlement offer that reads something like “If you click on the link below and login to the Rightscorp, Inc. automated settlement system, for $10.00 [or $20.00] per infringement, you will receive a legal release from the copyright owner.”
Cox has a policy of not only rejecting DMCA notices that include settlement offers but also blacklists companies that send these sort of notices so that they don’t clog up the DMCA notice line.
“On March 14 , Cox blacklisted Rightscorp, meaning from that point on, Cox auto-deleted Rightscorp’s emails and never retrieved the information from the body of those notices,” reads the judge’s ruling. “The following October, Cox claims Rightscorp ‘started inundating’ its inbox, sending as many as 24,000 notices in one day. In response, Cox blocked Rightscorp. Blocking messages goes one step beyond blacklisting… When a complainant is blacklisted, Cox still has a record of the emails received and deleted. When a complainant is blocked at the server level, there is no record of any message received.”
Cox contends that the blocking and blacklisting was not, as BMG accused, a matter of “willful blindness” on the ISP’s part, but the result of Rightscorp’s refusal to work with Cox. The cable company says it offered to forward Rightscorp DMCA requests if they were modified to remove the settlement language. When they were not, that’s when Cox began putting up a wall against Rightscorp claims.
This part of the matter is to be decided at trial (if it gets that far). We would not be shocked if Cox and BMG reach a settlement now that the judge has stripped Cox of its safe harbor protection.