On December 1, 2015, the US District Court for the Eastern District of Virginia issued an opinion in BMG Rights Management (US) LLC v. Cox Communications, Inc. granting partial summary judgment in favor of BMG Rights Management (US) LLC and determining that Cox Communications, Inc. violated the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) by failing to adequately implement a repeat infringer policy ( (E.D. Va. (Dec. 1, 2015)).

BMG, which holds the copyrights of more than 1,400 songs, filed suit against Cox alleging contributory and vicarious copyright infringement for direct infringements occurring over Cox’s high-speed internet service. BMG, through Rightscorp, Inc., a copyright enforcement company that locates alleged copyright violators and collects money damages and settlements on behalf of the copyright holder, notified Cox of 2.5 million instances in which Cox internet users offered BMG’s copyrighted works for download over the Cox internet network. In its answer, Cox asserted the safe harbor defense under the DMCA. Both parties cross-moved for summary judgment.

Among other things, the district court focused its analysis on whether Cox met the DMCA safe harbor requirements by adopting and reasonably implementing a repeat infringer policy that provides for account termination of repeat infringers. Cox argued it adopted and implemented a repeat infringer policy that generates a graduated response protocol. Although Cox takes no action against a customer when it receives an account’s first copyright infringement notice, on receipt of subsequent complaints, Cox escalates its response accordingly. At the fourteenth complaint, Cox reviews the full account history and considers terminating the account.

The district court rejected Cox’s claims, finding that:

The court also noted that, although Cox modified its graduated response protocol in October 2012 to add two additional suspension steps, it appeared to significantly limit the number of accounts it terminated at all. Although Cox abandoned its policy of allowing account holders to request reactivation after termination, BMG presented evidence that Cox failed to terminate account holders it knew were repeat infringers. In particular, BMG noted that in the two years before Cox modified its policy, it terminated an average of 15 accounts per month. However, after October 2012, the average number of account terminations per month dropped to 0.8.

Likewise, BMG presented emails between Cox employees discussing account holders who admitted to infringement activities, but whose accounts were never terminated in an alleged effort to retain Cox's subscriber base. Taken together, the district court found this evidence supported the claim that Cox had actual knowledge of repeat infringers and failed to terminate their accounts.

After granting BMG’s motion for summary judgment, the matter went on to trial, where a jury awarded BMG $25 million in damages for willful contributory infringement.