Denial of BMG v. Cox Retrial Shouldn't Worry 'Law-Abiding' ISPs, AEI Scholar Says

U.S. District Judge Liam O'Grady's ruling last week denying Cox Communications' motion for judgment or a new trial of the BMG Rights Management copyright infringement lawsuit (see 1608090047) shouldn't worry “law-abiding” ISPs, said Tom Sydnor, visiting scholar at American Enterprise Institute’s Center for Internet, Communications and Technology, in a blog post Wednesday. A federal jury in Alexandria, Virginia, found against Cox in BMG's lawsuit, which alleged Cox failed to penalize its Internet customers who repeatedly infringed copyrighted materials. The jury awarded BMG $25 million in damages (see 1512180012). O’Grady said Cox was right that there was no evidence on how its users ended up using the content of more than 100,000 copies of BMG works, but there was enough proof "from which a reasonable jury could find Cox users violated BMG's reproduction right." Sydnor countered Public Knowledge’s assertions that O’Grady’s ruling threatens reliable internet access, saying the ruling “merely” confirms that law-abiding ISPs should now “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,” as devised in Copyright Act Section 512. BMG v. Cox likely will be appealed, but the evidence presented in the district court “must now be interpreted in the way most favorable to the jury’s verdict,” Sydnor said: Cox’s “thirteen-strike” user-access termination program meant “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 U.S. laws that outlaw deceptive or unfair trade practices.” PK “just misses the point of Section 512,” Sydnor said. “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.” The termination-of-service policy required by Section 512 “is really just one of many efforts to encourage ISPs to cooperate, rather than litigate, terminate or use their subscribers as human shields,” Sydnor said. “If the result in BMG v. Cox reminds ISPs of the many advantages of cooperating, then it is entirely consistent with congressional intent.” PK didn't comment.