06 February 2018
Reporter: Barney Dixon

New trial ordered in BMG v Cox

The US Court of Appeals for the Fourth Circuit has overturned a $25 million damages award for BMG Rights Management and ordered a new trial in its dispute with Cox Communications, but maintained that Cox had foregone its safe harbour defence.

In August 2016 Cox was held liable for the copyright infringement of its users in a ruling at the US District Court for the Eastern District of Virginia.

Cox had also been denied its safe harbour defence under the Digital Millennium Copyright Act (DMCA) in 2015 due to its failure to terminate the accounts of its infringing customers.

Safe harbours, under the DMCA, protect internet service providers (ISPs) from the consequences of their users' actions, provided the ISP implements a policy that provides for the termination of repeatedly infringing user accounts.

Cox appealed the earlier decisions, arguing that the district court erred in denying its safe harbour defence and incorrectly instructed the jury.

The ISP said: “In the court’s view, ‘repeat infringer’ could cover someone who has not been legally determined to be an infringer—even though the DMCA elsewhere repeatedly refers to ‘claimed’ or ‘alleged infringement’.”

The Fourth Circuit’s ruling held that Cox was not entitled to a safe harbour defence and rejected its argument that the term “repeat infringers” was limited to adjudicated infringers.

Judge Diana Motz, who wrote the opinion for the court, said that Cox had “failed to qualify for the DMCA safe harbour because it failed to implement its policy in any consistent or meaningful way—leaving it essentially with no policy”.

However, Motz agreed with Cox’s argument that the district court had erred in instructing the jury that Cox could be found liable for contributory infringement if it “knew or should have known of such infringing activity”.

She said: “Because there is a reasonable probability that this erroneous instruction affected the jury’s verdict, we remand for a new trial.”

More Copyright news
The latest news from IPPro The Internet
Join Our Newsletter

Sign up today and never
miss the latest news or an issue again

Subscribe now
IPTV supplier fined £18,000
14 February 2018 | Harrow | Reporter: Barney Dixon
A pre-loaded IPTV box supplier must pay a £18,000 fine for selling illicit streaming devices online, as well as breaching the Premier League’s copyright
IFPI calls for “effective solution” to value gap
07 February 2018 | Brussels | Reporter: Barney Dixon
The International Federation of the Phonographic Industry (IFPI), with the support of 23 other creative industry organisations, has penned a letter to the new presidency of the European Council asking it provide an “effective solution” to the so-
New trial ordered in BMG v Cox
06 February 2018 | Virginia | Reporter: Barney Dixon
The US Court of Appeals for the Fourth Circuit has overturned a $25 million damages award for BMG Rights Management and ordered a new trial in its dispute with Cox Communications
CRB issues royalty rate hike for music streaming services
05 February 2018 | Washington DC | Reporter: Barney Dixon
The Copyright Royalty Board has ruled to increase royalty payments to songwriters and music publishers from music streaming services by nearly 44 percent
Grumpy Cat wins copyright lawsuit
25 January 2018 | California | Reporter: Barney Dixon
The owner of internet sensation ‘Grumpy Cat’ has won a copyright infringement lawsuit against Grenade Beverage
Radiohead sue Lana Del Rey for copyright infringement
8 January 2018 | New York | Reporter: Barney Dixon
Radiohead are suing Lana Del Rey for copyright infringement, claiming that the Del Rey’s 2017 song Get Free was similar to their 1992 song Creep
Glosfer and Gemmy to create blockchain copyright protection platform
4 January 2018 | Seoul | Reporter: Barney Dixon
Blockchain firm Glosfer has signed a memorandum of understanding with copyright protection company Gemmy to create a blockchain-based copyright protection platform