Recognizing It Had No Chance, Cox Settles BMG Copyright Trolling Case

from the and-onward dept

The long saga of the BMG v. Cox case is now over. If you don't recall, BMG had hired the copyright trolling outfit Rightscorp to bombard ISPs with shakedown letters, based on accusations of copyright infringement. Rightscorp really wanted ISPs to pass those letters on to ISP subscribers, including the part where they demand money to leave you alone. As was revealed during the case, Rightscorp would blatantly lie to those subscribers, telling them that if they were innocent they needed to first hand their computers over the police for a forensic search. Cox, after being bombarded with these shakedown letters, started ignoring the Rightscorp letters, leading BMG to sue.

Cox pointed to the DMCA safe harbors to protect itself, but the judge, Liam O'Grady, made it pretty clear that he didn't care much for the internet at all, and didn't seem to mind Righscorp and BMG shaking down people for money with the threat of losing their entire internet access. Of course, it did not help at all that Cox itself had some damning emails about how they treated subscribers accused of infringement. While plenty of attention has been placed on Cox's apparent "thirteen strikes" policy for those accused (not convicted) of copyright infringement, the real problem came down to the fact that Cox didn't follow its own repeat infringer policy. So, in the end, Cox lost to BMG in the lower court and it was mostly upheld on appeal.

However, the case was sent back down to the lower court because O'Grady messed up with his jury instructions, providing them with the wrong standard for contributory infringement (O'Grady's jury instructions about contributory infringement presented it as a much broader standard than it actually was). And thus, the case was supposed to go back for another trial... but that's now over as the two sides have settled and Judge O'Grady immediately signed off on the settlement.

This isn't all that surprising. Cox was basically in a no-win situation, since its own failure to abide by its own repeat infringer policy had already sunk it, and spending a few hundred thousand dollars more on lawyers to argue over contributory infringement in hopes of lowering the damages award probably wasn't worth it if they could just settle the case and move on.

Oh, and of course, Cox now also has a brand new fight with all the major labels that was launched a few weeks ago in response to the results of the BMG case. And Cox is right back in Judge O'Grady's unwelcome court room for that case. I wouldn't be surprised if Cox tries to settle its way out of that case as well.

Filed Under: copyright, copyright trolling, dmca, liam o'grady, repeat infringer, settlement
Companies: bmg, cox, rightscorp


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  1. identicon
    Christenson, 26 Aug 2018 @ 1:54pm

    Re: Re: Re: Re: There is a lesson here that is beyond IP

    https://www.digitalmusicnews.com/2018/08/24/bmg-settlement-cox-communications/

    Word in this article is that with judge allowing conflation of "infringement" with "stealing", a loss for Cox was written on the wall, and the settlement might be "go away" money. (Lawsuits are plenty distracting, cost those involved way more than just what the lawyers get)

    https://www.digitalmusicnews.com/2018/08/24/supreme-court-review-dmca-porn/

    Ventura got no damages in court because the site where it's porn was being uploaded complied with DMCA takedown notices. Ventura feels that the site was deliberately and willfully infringing it's material, did not act until it received the takedown notices, and therefore *should* have to pay damages.

    My opinion:
    Cox folding is a strategic decision to move out of a no-win forum, Ventura did not change the calculus. Ventura's case will be denied review or lose and be told to petition the congress for redress. Possibly Ventura will be remanded, required to make a strong showing that the infringing site was indeed playing "chicken" with the DMCA to avoid being like sci-hub.

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