Cox, Facing More Copyright Infringement Claims, Seen Having Limited Options

That Cox Communications is being sued again by music interests for alleged willful infringement of their copyrights is no surprise, given the 4th U.S. Circuit Court of Appeals decision earlier this year in BMG Rights Management's lawsuit against Cox (see 1802010026), IP experts told us. Whether Cox can see a different result in the new litigation, filed Tuesday in U.S. District Court in Alexandria, Virginia, will depend on whether it can show it has changed, the experts said.

Much of the case could come down to what Cox did when it started to realize it might get sued in what became the BMG case and whether it fixed its repeat infringer policy then, said Rick Sanders of Aaron & Sanders. If the infringements in the new suit came before Cox addressed those infringement policies, the ISP could be facing a formidable legal challenge and might try to work out an agreement, added Jonathan Band.

The 4th Circuit decision was based largely on Cox internal processes, and with those facts applied equally to other rights holders, “it may be hard for [Cox] to avoid the same results,” said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. The lower court and 4th Circuit decisions said Cox wasn't eligible for Digital Millennium Copyright Act protections on BMG, which would also likely hold true with the new litigation, but there's a separate question whether Cox is liable for the actions of its internet subscribers. That is being fought over in the portion of BMG v. Cox remanded to the lower court.

Cox for years turned a blind eye to its internet subscribers infringing on others' copyrights through online piracy, music labels said in the docket 18-cv-00950-LO-JFA complaint (in Pacer). They claimed Cox, by not forcefully following through on its 13-strike policy of terminating repeat copyright infringers, eschewed its legal obligations. They said other copyright infringement litigation against the company showed its 13-strike policy "to be a sham" and ineligible for DMCA safe harbor. Sony, Arista Records, EMI, Atlantic, Warner Bros. Records, Capitol Records and Universal asked for declaration Cox willfully infringed their copyrights, plus unspecified damages. Cox didn't comment now.

There likely aren't new or plausible defenses open to an ISP that doesn't maintain or enforce a reasonable repeat infringer policy, said Sandra Aistars, director-copyright research and policy, George Mason University's Center for the Protection of IP. Both the 4th Circuit and Eastern District of Virginia were "quite definitive," she said.

Courts haven't been looking hard at the DMCA structure and that could be a theoretical route a defendant might pursue, said University of Idaho law professor Annemarie Bridy. She said issues that still remain gray after DMCA litigation include whether Congress intended Section 512A providers like ISPs to be subject to a notice-and-takedown regime when they don't store infringing material or anticipated them having to receive and process hundreds of thousands of violation notices from copyright holders. Bridy said there's uncertainty on the relationship between an IP address and how that doesn't necessarily point to the direct infringer of a copyrighted work. "It's not an easy one to one," she said. Courts have said making available a copyrighted work isn't an infringement, so claims of secondary infringement rest on acts that might not constitute direct infringement, she said.

Some said other major broadband service providers perhaps haven't been subject to similar litigation because they were part of the now-defunct Copyright Alert System agreement with rights holders, while Cox wasn't. Shubha Ghosh, Syracuse University Intellectual Property Law Institute, said it could reflect that the 4th Circuit decision applies only in that circuit. There also has been speculation the decision could represent a circuit court split that gets appealed to the Supreme Court. Whether the high court would take it up isn't clear because the decision mightn't represent a circuit split but rather courts coming at similar issues from different ways due to different facts.