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What Does BMG v. Cox mean for the Copyright Alert System

December 17, 2015

A Virginia jury today handed down a $25 million judgement in favor of BMG for willful contributory copyright infringement by Cox Communications following what was apparently a very brief deliberation.  There will be much written about the case, but let’s think for a moment about what it means for the Copyright Alert System.

The judge in the case ruled earlier in pre-trial motions that Cox had failed to maintain an effective repeat infringer policy and procedure.  What seems to have been most compelling to the judge was that Cox didn’t do enough in terminating repeat infringers although the company did temporarily suspend access to a users Internet connection.

That is interesting because the Copyright Alert System (which involves the largest US ISPs) is essentially a system of notices and alerts that never results in what seemed to be important to the court in Cox–termination.  Which is actually just plain old common sense.

Given that the Memorandum of Understanding that created the Copyright Alert System is about to expire, the verdict in Cox and Judge O’Grady’s ruling denying Cox the safe harbor are likely to give artists and copyright owners pause when considering whether to extend or renew.  It’s also well to remember that music publishers and songwriters are not part of the Copyright Alert System.  There’s nothing stopping a songwriter or publisher from using the Cox precedent to proceed against any ISP.

Now that there is a sensible precedent, it’s easy to understand how you could look at the Copyright Alert System and ask why bother.

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