BMG v. Cox: A Lesson on Accountability

We tend to associate technology with freedom, and perhaps for good reason. I remember taking road trips growing up where my mom would have a printed, fold-out map in hand, while my dad drove, stopping at rest stops along the way to map out the next portion of the trip. But GPS navigation has since made that a thing of the past; like a scene from Zenon: Girl of the 21st Century, cars even drive themselves these days. And thanks to the internet, we can do almost anything from the comfort of our own homes. Put simply, technology gives us the freedom to do more, with a fraction of the effort.

But what we sometimes forget is that, like the age-old saying goes, with freedom comes great responsibility—for those empowered with freedom, and more importantly, for those doing the empowering. Throughout 2016, we saw popular websites respond to concerns over the “fake news” problem, as well as instances of discrimination and harassment involving Twitter, Facebook, and Airbnb users. We saw Facebook step-up recently to hold itself accountable—but not before feeling the pressure to do so—for the growing problem of copyright infringement on its platform, by adopting a plan which includes developing its own Content ID system, and the potential for licensing deals between the company and the major record labels. And despite once calling itself “a communication utility, not a mediator of content,” even Twitter is beginning to see that given the reach of the communication it empowers, and its ongoing ability as an intermediary to control that reach, what once may have been considered mere “communication utilities” are beginning to look more and more like mediators of content.

As we begin a new year, the growing theme seems to be accountability. If an ISP has the ability to hold an individual user accountable for his or her own account activity, it follows that the ISP should be accountable in the aggregate for the activity that it empowers and allows to go on via these “communication utilities.” That’s precisely what’s at issue in BMG Rights Management’s case against Cox Communications. In 2014 BMG sued Cox for vicarious and contributory copyright infringement, based on allegations of copyright infringement by its subscribers. Specifically, BMG alleged that Cox subscribers illegally reproduced and distributed 1,397 copyright-protected songs via peer-to-peer file-sharing networks. Despite receiving at least 1.8 million notifications, in addition to weekly letters, regarding the ongoing activity, Cox ignored the behavior entirely, even failing to implement its own (rather lenient) thirteen-strike policy. In December 2015, a jury found Cox liable for willful contributory infringement, awarding BMG $25 million in damages. Cox’s motion to overturn the verdict was met, instead, with affirmance of the prior ruling against it in August 2016. Now, the parties are set to appear before a court of appeals that will decide whether the jury was within its rights to hold Cox accountable as an intermediary that neglected its responsibilities, or confer immunity on the media giant as a mere innocent set of “pipes” that may continue to provide services to bad actors  that it knows are engaging in illegal behavior.

What’s more, in their brief Cox amicus US Telecom goes further than absolving ISPs of any responsibility for addressing known illegal conduct on their networks, positing that if BMG’s victory is overturned, they could instead go and sue thousands of individual infringers:

“copyright holders [would not be left] empty handed if they suspect infringement by a subscriber. Copyright holders have aggressively utilized John Doe lawsuits to target alleged infringers directly, often with great success.”

This suggestion is both self-serving and deeply ironic. The “great success” they cite—including Sony BMG Music Entm’t v. Tenenbaum and Capitol Records, Inc. v. Thomas-Rasset—were cases that took years and enormous sums in legal fees to achieve, and were part of a litigation campaign that others among Cox’s amici criticized in the harshest of terms. It appears that instead of fulfilling statuory obligations to work with rights holders cooperatively to diminish copyright infringement on their networks, some of Cox’s allies would prefer a new avalanche of copyright lawsuits against individuals. This suggestion—that what the internet really needs is a new wave of litigation—lacks imaginitation at best, and at worst is deeply cynical.

As the Copyright Alliance stated in a letter to Congress last year “[a] truly free internet, like any truly free community, is one where people respect the rights of others and can engage in legitimate activities safely—and where those who do not are held accountable under law by their peers.” Just as there is a growing consenus by the public that a lawless internet is unacceptable, the court must not accept that Cox is not accountable for knowingly allowing its subscribers to engage in blatant acts of piracy using the service it provides. Anything less would be a huge step in the wrong direction: backwards.

photo credit: KeremYucel/iStock/thinkstock

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