In the article “The copyright case that should worry all internet providers (0),” the Washington Post warns that reliable internet access is now threatened by an “obscure” decision in the famous BMG v. Cox case. The judge in that case just predictably upheld (1) a $25 million jury verdict finding that Cox Communications willfully and materially contributed to its subscribers’ infringements of BMG’s copyrights. Reportedly, any judge who would let jurors decide whether a provider of internet services should be “liable for its customers’ piracy should absolutely worry other internet providers, according to legal analysts at the consumer group Public Knowledge.”
That claim is misleading. The new BMG v. Cox decision mostly just reaffirmed a prior 2015 decision (2). Nor need these decisions “worry” law-abiding internet service providers (ISPs). They merely confirm that such ISPs should now do what Congress always intended in Section 512(i)(1)(B) (3): cooperate with copyright owners and others to use new technologies to deter internet infringement more efficiently than take-down or service-termination remedies devised in the mid-1990s do.
The repeat-infringer-termination program held to be a hollow façade
BMG v. Cox involves liability for infringing peer-to-peer file sharing via the BitTorrent protocol. The case was litigated in the widely respected US District Court for the Eastern District of Virginia (EDVA). In late 2015, an EDVA judge held that Cox did not qualify for section 512 limitations on civil monetary remedies for copyright infringement because it had not reasonably implemented a policy of terminating service to “repeat infringers,” as required by Section 512(i)(1)(A) (4). A jury then held Cox liable for $25 million for willful copyright infringement. Recently, the judge rejected (5) Cox’s attempts to overturn that jury’s verdict.
Consequently, while this case probably will be appealed, the evidence in BMG v. Cox must now be interpreted in the way most favorable to the jury’s verdict. That might mean the following:
- Cox knew that BMG’s notices of subscriber infringements involved BitTorrent-based file sharing sites and programs used almost exclusively to infringe copyrights in popular films and music.
- Nevertheless, it developed a “thirteen-strike”-based termination program that could, in theory, terminate service if a given subscriber generated at least thirteen well-documented allegations of BitTorrent-related infringements. But that program was mostly illusory:
- Every six months, Cox would erase all of a subscriber’s prior “strikes” and pretend that subscriber had never before been accused of infringement.
- Cox let a given copyright owner submit only a given number of infringement claims against its subscribers per day. It ignored all additional infringement claims, even though BitTorrent works best when many users are downloading the same work.
- Cox ignored all valid infringement notices if those notices offered to let subscribers settle, for $20 or $30, claims that could cause subscribers to incur infringement liability that could exceed $150,000.
- If a subscriber did trigger the termination policy, then Cox would restore their “terminated” service the next day and erase all their prior “strikes” – as if they had never before been accused of infringing.
- Finally, the judge noted that (6) “[T]he former head of Cox’s Abuse Group summed up Cox’s general sentiment towards its [Section 512] obligations best in an email exclaiming ‘f the [Digital Millennium Copyright Act].’”
In short, under this “termination” program, a family could pay Cox for years without learning that Cox had long known that their teenager was using their account to pirate hundreds or thousands of songs and movies. The problems with such a program go well beyond the copyright laws. For example, concealing from parents offers to settle potentially devastating claims for a few dollars could violate the many US laws that outlaw deceptive or unfair trade practices.
The BMG v. Cox jury also found that Cox willfully infringed BMG’s copyrights. That finding made the conduct of Cox potentially criminal: it could potentially trigger any or all of the criminal and civil penalties imposed by section 506 and the US Criminal Code’s aiding-or-abetting, conspiracy, criminal forfeiture or racketeering provisions. It makes no sense to interpret section 512 to grant limitations on civil monetary relief to any ISP engaged in conduct that Congress has defined as potentially criminal. Doing so fails to promote any truly lawful internet “innovations.”
The “consumer group” Public Knowledge is upset because a judge has again held that reasonable jurors could conclude that Cox contributed willfully and materially to its subscribers’ ability to use BitTorrent to infringe copyrights. But it seems to be more upset that a judge has again held that such conduct could subject a sophisticated corporation to the sorts of civil monetary relief that BMG could inarguably seek from many of the ordinary American families and consumers paying for its services. That is not the sort of conduct that section 512 was intended to encourage or “harbor.”
Section 512 was meant to encourage cooperation, not confrontation
Public Knowledge just misses the point of section 512. Congress intended to create a set of rough, even mutually inconvenient, ground rules that would strongly encourage responsible copyright owners and ISPs to work together, through open, fair, and voluntary multi-industry standard-setting processes, to create the sort of “standard technical measures” envisioned in Section 512(i)(1)(B). Consequently, the termination-of-service policy required by Section 512(i)(1)(A) is really just one of many efforts to encourage ISPs to cooperate, rather than litigate, terminate or use their subscribers as human shields. If the result in BMG v. Cox reminds ISPs of the many advantages of cooperating, then it is entirely consistent with congressional intent.