ACA Backs Cox in Liability Judgment Appeal

Says such penalties could be financially devastating to smaller ops
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The American Cable Association has joined the Consumer Technology Association and CTIA in backing Cox's challenge of a multi-million dollar verdict for contributory liability.

The court found Cox "willfully" liable for contributing to copyright infringement by users of its internet service and has awarded music company BMG $25 million in statutory damages.

The complaint against Cox was that it was not sufficiently responsive to BMG's requests that it terminate the accounts of subscribers who repeatedly infringed copyrights.

ISPs have to respond to such requests to retain the Digital Millennium Copyright Act (DMCA) protection from copyright infringement claims themselves. BMG said Cox had not done that and its subs did not face a realistic threat of losing their accounts, even for repeat infringements.

In a brief filed with a Virginia U.S. District Court, ACA urged the court to reverse the decision, which it said could result in "financially devastating penalties."

ACA said the court had made a host of errors, including "inappropriately imputed knowledge of its subscribers' allegedly infringing activities, ignored Congressional intent to protect ISPs from liability, and ignored the realities of what information an ISP observes with respect to its subscribers' activities."

"ISPs rely on DMCA immunity in the face of what would otherwise be business-altering litigation risk," said ACA president Matt Polka. "The DMCA safe harbor is vital to ISPs given subscribers' peer-to-peer file-sharing because ISPs lack the ability (or obligation) to monitor and investigate every instance a subscriber is alleged to use P2P applications to share infringing material....While preventing copyright infringement is the ultimate goal of the DMCA, demanding that ISPs who receive millions of notices terminate subscribers, or face potentially ruinous contributory infringement liability, undermines the DMCA's terms and intent and the balance Congress struck between rights of copyright holders, users, and providers of Internet access service."

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