The US music industry is ending the year with a billion dollar court ruling in its favour. Which is nice. Mince pies and mulled wine all round, I reckon. Fuck it, let’s have a hog roast! Because the jury in the Cox Communications copyright case has quickly found in favour of the record companies, and they did so big time.
Internet service provider Cox is accused, of course, of operating a deliberately shoddy system for dealing with repeat copyright infringers among its customer base. That, the music industry argues, means it should not be protected by the copyright safe harbour, which says that internet companies cannot be held liable for their users’ infringing activities.
It was BMG who first successfully sued Cox on this issue. Seeking to exploit the precedent seemingly set in that case, the Recording Industry Association Of America – repping the major music rights companies – launched its own legal action against three American ISPs, including Cox.
For its part, the net firm tried to have the case dismissed at various stages by employing an assortment of arguments, including that the labels had not effectively proven that any of its customers directly infringed the 10,017 tracks specifically named in the RIAA-led lawsuit.
Just this week, as the jury trial was reaching its conclusion, Cox submitted a motion seeking to have the judge, rather than the jury, decide on key elements of the case. That suggested the ISP suspected things weren’t looking good as the jury began their deliberations. And whenever juries get to set the damages in American copyright cases, they nearly always skew high within the wide-ranging parameters allowed by US copyright law.
Having ruled that Cox was indeed liable for the infringement, by its users, of all 10,017 tracks listed in the RIAA-led litigation, the jury seemingly then opted for a nice neat billion in damages, and then did some maths. Which means Cox is liable for $99,830.29 for each of those 10,017 illegally downloaded and shared music files.
Needless to say, the ISP intends to appeal. “We are disappointed in the court’s decision”, it said yesterday. “The amount is unjust and excessive. We plan to appeal the case and vigorously defend ourselves. We provide customers with a powerful tool that connects to a world full of content and information. Unfortunately, some customers have chosen to use that connection for wrongful activity. We don’t condone it, we educate on it and we do our best to help curb it, but we shouldn’t be held responsible for the bad actions of others”.
For the music industry, a billion dollar pay day – if that is, indeed, the final amount due, it could as yet get cut – isn’t to be sniffed at. But the ruling also confirms the precedent arguably set by the BMG litigation (despite some end-of-the-day complications in that case), which is that US copyright law has some solid minimum standards for safe harbour dwelling internet companies to meet, and failure to do so means safe harbour protection is removed.
Although America’s Digital Millennium Copyright Act clearly states that safe harbour protection is conditional on net firms operating takedown systems and policies for dealing with repeat infringers, the law is less clear on what form those systems and policies should take.
In the early days of tech companies relying on safe harbour, it was often felt that the American courts set the bar pretty low when it came to such firms fulfilling their obligations to enjoy that protection. But with more recent judgements we have seen that bar rise. The Cox rulings – both in the BMG case and this one – definitely confirm that.
Welcoming yesterday’s ruling, the RIAA’s Chief Legal Officer, Kenneth L Doroshow, said: “The jury’s verdict sends a clear message – Cox and other ISPs that fail to meet their legal obligations to address piracy on their networks will be held accountable. The jury recognised these companies’ legal obligation to take meaningful steps to protect music online and made a strong statement about the value of a healthy music ecosystem for everyone – ranging from creators to fans to the available outlets for legitimate music consumption”.
The ruling was also welcomed by the US music publishing community, with the boss of the National Music Publishers Association, David Israelite, declaring that: “Today’s victory on behalf of music publishers and record labels who own over 10,000 copyrights is a clear message to ISPs like Cox who refuse to take responsibility for infringers on their networks”.
“Cox received hundreds of thousands of notices of infringement and did not adequately respond or comply with its obligations to stop its subscribers from infringing on peer to peer networks”, he went on. “Cox had the right and ability to prevent the continued harm to music creators and it chose its own profits over complying with the law”.