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  • Writer's pictureDenny Esford

How Safe is Safe under Section 512 of the DMCA for ISPs who Fail to Comply?

If you’ve ever used the Internet, you’re aware of just how much can go wrong. Essentially anything is possible, be it legal or illegal. We all know that television shows, movies, and music can be found for free on certain websites with a simple Google search. Some of this illegal content can, and frequently is, posted on legitimate, well-known sites, like e-Bay or YouTube. Title 17 of the US Code was amended in 1998 to include the Digital Millennium Copyright Act (“DMCA”). Section 512 of the Act, specifically protects legitimate websites from unwitting but illegal postings.

Section 512, more commonly known as the “Safe Harbor” provision of the DMCA, provides immunity from copyright infringement for Internet service providers who take reasonable steps under the circumstances to prevent infringement. Accordingly, lawsuits of this nature are uncommon. However, the night before Thanksgiving, a suit was filed which centers on the DMCA’s Safe Harbor provision..

BMG Rights Management and Round Hill Music filed suit against Internet service provider Cox, alleging copyright infringement. The case can be found by searching BMG Rights Management (US) LLC, and Round Hill Music, LP v. Cox Enterprises, Inc., Cox Communications, Inc., and Coxcom, Inc., d/b/a Cox Communications of Northern Virginia, case no. 14 CV 1611. While typically the Safe Harbor provision would apply, BMG and Round Hill claim that Cox did not comply with the provision’s requirements for immunity. In order for Safe Harbor to apply, Cox must “(1) adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) accommodate and not interfere with standard technical measures.” At issue for Cox is the first requirement. Specifically BMG and Round Hill’s allegation that Cox ignored repeat notifications of infringement and refused to terminate access to those infringers, and by doing so, affirmatively chose to contribute to the infringement.

Cox directly profits from the alleged infringement in the form of subscriptions, which makes this case interesting. Would Cox truly, as BMG and Round Hill claim, risk protecting their subscribers for a simple profit motive? Would Cox really ignore the courts in the Viacom Int’l v. YouTube and the Perfect 10 cases by refusing to terminate repeat offenders? If so, Cox could be facing the maximum statutory damages for each work that has been infringed, as willful contributory infringers. Could this be the start of more aggressive policing by other ISPs, or will Section 512’s Safe Harbor provision once again step in to save the day?

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