In a decision that could have implications for other Internet service providers, a U.S. District Judge has granted in part and denied in part music rights company BMG's request for summary judgment in its suit against Cox Communications. The complaint against Cox is that it was not sufficiently responsive to BMG's requests that it terminate the accounts of subscribers who repeatedly infringed copyrights.
ISPs have to respond to such requests to retain DMCA protection from copyright infringement claims themselves. BMG said Cox has not done that and its subs do not face a realistic threat of losing their accounts, even for repeat infringements.
Cox had no comment, but in its response to the court after the suit was filed, Cox countered that it vigorously enforces its infringer policy, takes a "graduated" approach to allegations, and that BMG (and Round Hill) mischaracterized that policy and might not have the rights to the content they were asserting.
Cox said Rightscorp., which, acting for BMG and Round Hill, monitored and identified the infringement, was a shady operation that, with BMG and Round Hill's complicity, was exacting retribution through the suit for Cox's refusal to participate in a scheme to "shake down ISP customers for money without regard to actual liability," and trying to get ISPs to participate in that scheme.
The judge, in a two-page summary of his upcoming decision, denied Cox's motion and upheld BMG's request for partial summary judgment, though it denied that of Round Hill's, saying Round Hill did not have exclusive rights to the copyrights at issue.
Judge Liam O'Grady signaled that Cox could not use the DMCA safe harbor defense, saying, "There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat infringer policy, as required by the DMCA."
He did not come right out and say the material fact was that the policy was insufficient, but the summary judgment appeared to make that point without it being spelled out.
BMG and Round Hill Music both sued in the Eastern District of Virginia. Both Cox and the music publishers sought summary judgment -- Cox to dismiss the case, and BMG and Round Hill for a decision against Cox.
BMG is seeking civil damages and injunctive relief, which the court has yet to rule on.