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Copyright infringement is definitely “stealing”, reckons judge in BMG v Cox case

By Chris Cooke | Published on Tuesday 21 August 2018

As we all know, “you wouldn’t steal a car”. Or a handbag. Or a television. So will you all stop nicking movies off the internet please! Why? Because “downloading pirated films is stealing” of course!

That infamous and much mocked anti-piracy ad may have done little to stop the rampant illegal downloading of movies, but maybe it did subtly infiltrate the mind of American judge Liam O’Grady. Because he’s just ruled that it’s definitely OK for BMG to refer to copyright infringement as “stealing” in the upcoming re-run of its legal battle with US internet service provider Cox Communications.

BMG sued Cox in 2014 over the copyright infringement of the ISP’s customers. Like any tech company on the receiving end of a copyright complaint, Cox pleaded safe harbour, arguing that it couldn’t be liable for the infringement of its customers under America’s Digital Millennium Copyright Act. BMG said that Cox had a deliberately shoddy policy for dealing with repeat infringers among its customer base and therefore should be denied safe harbour protection. First time around a jury sided with the music firm.

That $25 million copyright infringement judgement against Cox was overturned on appeal, of course. Though that was based mainly on a technicality relating to instructions given to the jury in the original case by the judge. Other comments made in the appeals court ruling seemed to back up BMG’s arguments about Cox having lost safe harbour protection as a result of its lacklustre approach to dealing with infringement on its networks. However, the case is now heading back to court for a repeat run of the whole legal battle.

Both sides have been making various requests of the judge ahead of that repeat run. One standout request came from Team Cox, which asked that the BMG side be banned from using words like ‘stealing’ and ‘theft’ when talking about the infringement of its copyrights. Such talk is clearly “inflammatory”, Cox argued. After all, “stealing” is for cars, handbags and televisions, not digital files containing some musical notes.

Referencing the BMG team’s past use of emotive words like “stealing” and “theft” when talking before a jury, Cox requested – according to Torrentfreak – that the judge make a ruling that “requires BMG’s counsel to refer to the alleged conduct as an ‘alleged violation of the copyright laws’, [an] ‘alleged infringement of BMG’s copyright rights’, or something similar – not ‘stealing’, ‘theft’ or any other related term”.

Judge O’Grady responded last week with what is generally known in legal circles as a ‘judicial fuck off’. The judge said in his ruling: “The court does not find it appropriate to bar BMG from referring to copyright infringement as stealing, theft, or some other related term, as such language is not unduly prejudicial to Cox … If a party has good cause to object to a specific comment made by the opposing counsel, the party may do so at that time”.

Given that ruling also provides the all clear for BMG to use any “related terms”, maybe its lawyers could try to find a way to include in its opening remarks all of the following: robbing, nicking, swiping, filching, thieving, looting, pinching, pillaging, purloining, abducting, embezzling, pilfering, plundering, misappropriating, peculating, burglarising and allowing the transfer of protected data from one server to another without first acquiring the prerequisite licence from the rightful intellectual property owner or owners under law or their appointed agent or representative or agents or representatives. You know, for fun.