Harmful: Judge Claims It ‘Objectively Unreasonable’ For Cox To Claim DMCA Safe Harbors

1In the newest improvement of the BMG v. Cox case, Judge Liam O’Grady is in search of to wreck the DMCA’s safe harbors by insisting that Cox shell out eight million to BMG in legal costs, claiming that the use of these protected harbors as a defense was “objectively unreasonable.”


Guest post by Mike Masnick of Techdirt

We’ve been covering the BMG v. Cox case considering that the beginning, and a undesirable selection just got made even worse — and a lot more unsafe. If you have been following the case, you know that it is on appeal appropriate now (and a entire bunch of amici have weighed in), but in the meantime, the judge in the district court, Judge Liam O’Grady, has doubled down on his chance to chop up and mock the DMCA’s safe harbors by telling Cox it have to spend $ eight million to BMG in legal charges because its employing the DMCA protected harbors as a defense was located to be “objectively unreasonable.”

That’s crazy, for a selection of factors, but we’ll get there. From the quite starting, this case was a joke, and it is unfortunate that the court did not realize that early on. The case was filed back in 2014, and we pointed out that it was actually BMG (and an additional publisher, Round Hill Music) acting as a proxy for copyright trolling operation Rightscorp, testing out the wacky legal theory that the DMCA requires that ISPs kick repeat infringers completely off the web. No one particular has ever interpreted the DMCA in this manner. Yes, 512(i) demands a repeat infringer policy, but it had often been widely recognized that that referred to solutions that hosted content material, not network providers (e.g., YouTube is necessary to have a repeat infringer policy that kicks users off YouTube if they maintain posting infringing performs, but your ISP shouldn’t kick you off the internet for the same thing.)

If that interpretation of the law was legit, you’d believe that an individual would have attempted it in court before — specifically with all the whining from the MPAA and RIAA about how ISPs weren’t performing adequate to cease piracy. So this was a genuine stretch as a legal theory.

But, somewhat amazingly — even following the legal proceedings demonstrated that the lawsuit was truly about copyright trolling and exposed some heinously poor behavior by copyright troll Rightscorp — the case went against Cox and in favor of BMG (Round Hill Music was kicked out of the case early on).

O’Grady made it fairly clear in the case that he’s not a huge fan of this web issue, and doesn’t see why it really is a big deal if a person have been to get kicked off the internet. At a single point in the proceedings, Public Expertise and EFF sought to file an amicus short. Admittedly, many district court judges aren’t fans of amicus briefs (they’re much more normally observed at appellate courts), but O’Grady was so dismissive of this 1 that it was relatively extraordinary:

I read the brief. It adds definitely nothing at all valuable at all. It is a combination of describing the horrors that one endures from losing the Web for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos alternatively of undertaking homework. And it is completely hysterical.

So, yeah. Judge O’Grady then said that Cox wasn’t protected by the DMCA at all, which created it effortless for the jury to uncover in favor of BMG and award it $ 25 million from Cox. Element of the problem was that there was some sketchy behavior by Cox (which includes some truly dumb emails by staff who never recognize the law, but look damning), but none of it should have straight impacted the legal issues, but that behavior clearly influenced O’Grady.

And, now, simply because of that, O’Grady has awarded legal fees, by arguing that Cox relying on the quite exact same DMCA secure harbors that absolutely everyone else relies on and exactly where Cox was the only main ISP that would kick off any user for infringement, was somehow “objectively unreasonable.” Consider about that for a second. Let’s repeat it: Cox’s policy was the only one particular at a major ISP that kicked folks off the network for repeat infringement. And each network provider often relies on the DMCA secure harbor to shield them from liability. And however, Judge Liam O’Grady’s opinion says that it was “objectively unreasonable.” Oddly, O’Grady’s opinion here is once more completely focused on the bad behavior by some Cox employees, and not the general query of no matter whether or not the safe harbor truly operates the way O’Grady (and Rightscorp and basically no one else) seems to think it operates. Rather than explaining why it’s “objectively unreasonable” for Cox to rely on the DMCA’s secure harbors, O’Grady basically says that the reliance was unreasonable… simply because of the undesirable behavior. That’s conflating two separate issues. Sanction them for undesirable behavior if you need to, but never let that cloud the actual legal situation.

The objective reasonableness of a party’s position is an critical element in deciding whether to award fees…. In a challenging-fought litigation battle such as this one, discovery disputes and fierce briefing are to be anticipated, and they should not be held as well harshly against either party. Nonetheless, there are a handful of instances in which Cox’s advocacy crossed the line of objective reasonableness. In particular, each Cox’s attempts to obscure its practice of reinstating infringing buyers, and its subsequent assertions of a deeply flawed DMCA defense evince a meritless litigation position that Cox vigorously defended.


…. Despite the fact that Cox’s DMCA defense can not be categorized as frivolous or in negative faith, the Court found that “[t]he record conclusively establishes that ahead of the fall of 2012, Cox did not implement its repeat infringer policy. Alternatively, Cox publicly purported to comply with its policy, although privately disparaging and intentionally circumventing the needs.”… The proof supporting this conclusion was overwhelming, and it integrated “smoking gun” e mail conversations…. The most memorable of these contained Cox’s own abuse manager stating: “F . . . the dmca!!!”… As a result, though Cox’s defensive arguments may have been affordable as an abstract legal theory, when viewed in light of the actual information of the case, they evince an objectively unreasonable litigation position that was nonetheless vigorously defended.

It’s clear that O’Grady is hung up on the poor behavior and statements by Cox personnel. And, once again, what they had been saying was truly bad. But the real question is regardless of whether or not it really violated the DMCA. And Cox argued, quite reasonably, that it did not. The DMCA does not in fact require what O’Grady and BMG insist it does, and no other ISP even goes as far as Cox did (undesirable behavior or not). So since you have some clueless Cox staff, who have been spouting off internally about how considerably they hate the DMCA (an opinion shared by several) and because they implemented their repeat infringer policy in a way that O’Grady felt wasn’t reasonable, suddenly arguing that the secure harbors still ought to apply (because they should!) is “objectively unreasonable”? That’s hazardous.

Again, the earlier components of the case are currently on appeal, so hopefully this will all get wiped out and this order won’t matter in the long run either. But if it does stand, it is however another significant problem that is come out of this particular case.