Earlier this month, a federal judge in the Eastern District of Virginia denied Cox Communications, Inc.'s motion to set aside a US$25 million jury verdict in a closely watched copyright dispute between Cox and BMG Rights Management, an intellectual property rights management company that represents musicians and other audiovisual artists. BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., Case No. 1:14-cv-1611 (Aug. 8, 2016). The ruling sets up an appeal by Cox regarding the applicability of the Digital Millennium Copyright Act's "safe harbor" provision for internet service providers (ISPs), as the same court had previously ruled that Cox was ineligible for "safe harbor" protection in light of its failure to comply with certain requirements that the DMCA imposes on ISPs.
One such requirement is that an ISP "adopt and reasonably implement . . . a policy that provides for the termination in appropriate circumstances of subscribers . . . who are repeat infringers." 17 U.S.C. § 512(i). BMG alleged Cox had failed to implement such a policy because it both failed to accurately track the number of notices of infringement it received for repeat infringers and because, until late 2012, Cox permitted repeat infringers whose accounts had been nominally "terminated" to have their accounts reactivated upon request. The court found this second ground dispositive, stating that "[s]ervice providers cannot skirt the termination requirement by imposing something short of complete termination of a subscriber or account holder."