Fourth Circuit Affirms Holding That Internet Service Provider Not Entitled to DMCA Safe-Harbor Defense

Tuesday, February 6, 2018

Cox Communications, Inc., an Internet Service Provider (“ISP”), appealed a district court’s ruling that Cox was not entitled to the safe harbor defense contained in the Digital Millennium Copyright Act (“DMCA").  To qualify for the safe harbor, an ISP must show it “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers.”  17 U.S.C. §512(i)(1)(A).  Cox adopted a “thirteen-strike” policy whereby repeat infringers were not considered for termination until after the thirteenth notice of copyright infringement.  In practice, Cox never terminated a subscriber for infringement without later reactivating it.  Also, Cox refused to forward “millions” of copyright infringement notices and settlement offers from an agent of BMG, a music publishing company, to Cox subscribers accused of copyright infringement.  The Fourth Circuit agreed with the district court’s determination that no reasonable jury could find that Cox’s thirteen-strike policy entitled it to the DMCA safe harbor.  The Fourth Circuit found that “[a]n ISP cannot claim the protections of the DMCA safe harbor provisions merely by terminating customers as a symbolic gesture before indiscriminately reactivating them within a short timeframe,” and that “Cox’s decision to categorically disregard all notices from [BMG’s agent] provides further evidence that Cox did not reasonably implement a repeat infringer policy.”  BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., Nos. 17-1352, 17-1353, 16-1972, 2018 WL 650316 (4th Cir. Feb. 1, 2018).