By: Jeffrey G. Sheldon, Esq.

The U.S. District Court for the Eastern District of Virginia recently held that Internet Service Providers (ISPs) can be liable for the uploading and downloading of infringing copyrighted musical works by their subscribers if the ISP fails to properly follow the Digital Millennium Copyright Act (“DMCA”). See BMG Rights Mgmt. (US) LLC, v. Cox Commc’n, Inc., No 1:14-cv-1611, 119 USPQ2d 1165 (E.D.Va. August 8, 2016).

BMG sued Cox in November of 2014 for the vicarious and contributory infringement of 1,397 musical composition copyrights. In response, Cox asserted that it was protected from suit under the safe harbor provisions of the DMCA. Under the safe harbor, an ISP may avoid liability for infringing uses of their services if certain requirements are met, including the implementation of a repeat infringer policy. Under Cox’s policy, a user essentially has to have 13 strikes or more against them before substantial action, such as termination, is taken.

BMG had been using Rightscorp, a third-party company, to monitor BitTorrent for file-sharing and to notify Cox with the expectation that Cox would then forward the notice to the customers. However, Cox used various technical means to avoid notifying its customers of the allegations, as well as taking proactive actions that contributed to ongoing illegal downloads.

The Court held that sufficient evidence existed for a reasonable jury to find Cox contributorily responsible for infringement of BMG’s copyrights because Cox had general knowledge of the infringement on its network, and because Cox materially contributed to the infringement by turning a “blind eye” to its occurrence. The Court upheld the jury’s verdict finding Cox Communications liable for contributory copyright infringement, and awarded BMG $25 million in statutory damages. This case may allow for finding ISPs liable for other areas of infringement, such as trademark infringement, giving rights holders further protection from infringement.