All companies that were required to file a Form 477 for 2013 must respond to the FCC’s one-time Special Access Data Collection.  Companies that do not fall into one of the FCC’s three specified filing categories must file a certification to that effect by today, Monday, December 15, 2014.

For background on the data collection, and information on determining if your company falls into one of the filing categories, please see our previous Special Update, available here.

If you have questions regarding the FCC’s Special Access Data Collection or need assistance with filing, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com or Maayan Lattin at (202) 872-6881 or mlattin@cinnamonmueller.com. 

Internet Service Provider Sued By Music Publishers

Two music publishers recently filed a lawsuit against Cox Communications (“Cox”) for copyright infringement, alleging that Cox, as an Internet Service Provider (“ISP”), repeatedly turned a blind eye to its subscribers’ illegal downloading activity and failed to terminate the accounts of repeat infringers. 

For ISPs, an important federal law is the Digital Millennium Copyright Act (“DMCA”).  The DMCA includes the Online Copyright Infringement Liability Limitation Act, which offers ISPs significant protection from copyright infringement claims.  By virtue of the service they provide as ISPs, cable operators are exposed to infringement claims arising from copyrighted material illegally placed on the operator’s network by a user.  The DMCA establishes procedures through which the cable operator can obtain immunity from these damage claims.

To obtain the protection provided by the DMCA, cable operators must fulfill several compliance obligations, including registering an agent to receive infringement complaints, adopting and posting a repeat infringer policy, and responding to infringement complaints appropriately. 

According to the complaint filed by BMG Rights Management and Round Hill Music, Cox failed to terminate the accounts of repeat infringers.  The music companies allege that 200,000 Cox subscribers committed seven million separate acts of copyright infringement and Cox had knowledge of these repeated infringements but continued to provide those Internet access service to these users “without consequence.”

The questions raised by this lawsuit are:  (i) at what point do ISPs have to shut down the accounts of subscribers that repeatedly violate copyright laws; and (ii) are the notices sent by the music publishers’ partner Rightscorp sufficient to establish that a Cox user is a repeat infringer? Cox, for instance, maintains a Graduated Response Program to address infringement claims, under which the company warns subscribers that they have received notice of illegal activity from their IP address and directs them to contact Cox’s Customer Safety Department.  This approach to addressing repeat infringers is more flexible than the Copyright Alert System (i.e., the Six Strike Program) adopted by other major ISPs.  According to the music companies in this lawsuit, Cox’s Graduate Response policy “precludes Cox from relying on the safe harbor protections of the DMCA” because “Cox subscribers do not face any realistic threat of account termination.” 

The case is pending before the United States District Court for the Eastern District of Virginia.

If you have questions regarding DMCA compliance or the safe harbor program please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com or Heidi Schmid at (312) 372-3930 or hschmid@cinnamonmueller.com.