By Ashby Jones | Wall Street Journal
Broadband Provider Accused of Turning Blind Eye to Subscribers’ Illegal Downloads
Two music publishers are taking aim at a new target in the battle against illegal song downloading: the cable industry.
Wednesday afternoon, BMG Rights Management LLC and Round Hill Music LP sued cable giant Cox Communications Inc., claiming that Cox, which provides Internet service to millions, is deliberately turning a blind eye to illegal downloading by its subscribers.
Such behavior violates federal copyright law, claim BMG and Round Hill, each of which controls the publishing rights to a number of well-known artists. BMG, owned by German media conglomerate Bertelsmann SE, controls rights to songs by David Bowie, Johnny Cash and Lenny Kravitz, among others. New York-based Round Hill controls rights to songs by the Beatles, James Brown and Katy Perry.
“Cox has had . . . knowledge of . . . repeat infringement by its subscribers,” reads the complaint, filed in federal court in Alexandria, Va. “Nonetheless, Cox has repeatedly refused to terminate the accounts of repeat infringers. The reason that Cox does not terminate these subscribers and account holders is obvious — it would cause Cox to lose revenue.”
A Cox representative declined to comment.
The move by BMG and Round Hill is the latest attempt by the music industry to cut down on the practice of downloading music without paying, an act it considers tantamount to theft.
The industry, largely through its trade group, the Recording Industry Association of America, has successfully used the courts to shut down file-sharing services like Napster and LimeWire.
It also reached legal settlements with thousands of individual users accused of illegally downloading, though the strategy of suing individuals drew deep criticism as a particularly heavy-handed response to the problem. Such criticism, both of the music industry and the copyright laws more broadly, grew especially pointed in 2007 after a Minnesota woman, Jammie Thomas-Rasset, was ordered to pay about $220,000 for illegally downloading 24 songs through the now-defunct Kazaa service.
Still, in the eyes of the industry, illegal downloads remain a lingering problem. According to the RIAA, since Napster emerged in 1999, music sales in the U.S. have fallen 53%, from $14.6 billion in 1999 to $7 billon in 2013.
The suit filed Wednesday targets the practice of downloading music through so-called torrent services, which enable fast and easy peer-to-peer file-sharing. Such services, which are widespread and are situated throughout the world, have been difficult for the industry to target through the U.S. legal system.
Rather than go after the torrent sites, BMG and Round Hill have chosen to go after Cox, using an untested legal theory.
A 1998 copyright law, known as the Digital Millennium Copyright Act, created a “safe harbor” from copyright claims for Internet-service providers as long as they met certain requirements, including cracking down on customers they knew to be repeatedly infringing copyright laws.
But BMG and Round Hill claim that they, through an agent called Rightscorp Inc., have identified and have given notice to Cox of “hundreds” of repeat infringers. They allege that Cox has failed to shut off those customers’ Internet service and has thus given up its safe-harbor protections under the DMCA.
Marc Reiner, an intellectual-property lawyer with Hand Baldachin & Amburgey LLP in New York, called the plaintiffs’ theory in the case somewhat novel. “In sum, they’re alleging that Cox is allowing alleged bad actors to use the Internet,” he said. “They do not appear to claim that Cox is providing any tools or applications to facilitate infringement other than simple bandwidth.”
BMG and Round Hill have asked for an unspecified amount of financial damages.