Cox v. BMG

Document type
Court Decision

This copyright case plays out against a complex factual backdrop addressed at trial and pleadings in the court below. The evidence included internal emails in which employees of Cox, a major ISP, express disrespect for, and arguably skirt compliance with, the Digital Millennium Copyright Act (DMCA).

The DMCA requires that intermediaries implement policies for termination of repeat copyright infringers. In Cox’s implementation, users accused of infringement via DMCA notices were not suspended until after a tenth notice, and could be considered for reinstatement after later notices. The Court held that this policy was insufficient, and rejected an argument that users could be deemed repeat infringers only after judicial adjudication of infringement. By failing in this DMCA requirement, Cox forfeited the defense for its service.

Turning to affirmative claims, the court considered whether Cox’s actions constituted contributory copyright infringement. Here, it ruled -- for now -- in Cox’s favor, and provided potentially important analysis of the mental state requirement for contributory copyright infringement. The lower court erred, it said, by instructing the jury that Cox could face contributory liability if it “should have known” of infringement. And it rejected BMG’s argument that knowledge or willful blindness could be shown based on Cox’s general knowledge of infringing uses, as opposed to knowledge of specific instances. The case is remanded to the lower court for further consideration.

Topic, claim, or defense
Document type
Court Decision
Issuing entity
Appellate Domestic Court
Type of service provider
Internet Access Provider (Including Mobile)
OSP obligation considered
Account Termination
Type of liability
Type of law
General effect on immunity