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ACA Supports Cox In Copyright Infringement Appeal

Lower Court Misapplied Copyright Law and DMCA Standards

PITTSBURGH, November 15, 2016 -  The American Cable Association in a legal brief urged a federal appeals court to protect Internet Service Providers against financially devastating penalties based on accusations of failing to terminate Internet access accounts of customers accused of copyright infringement under the Digital Millennium Copyright Act (DMCA).

Congress specifically included provisions to shield ISPs from liability for their customers' unauthorized file sharing (such as music and movies) over the Internet. But a U.S. District Court ruling unfavorable to Cox Communications misinterpreted copyright law and put vital DMCA immunities into questions, exposing ISPs to millions of dollars in damages, according to ACA's court filing.

"ISPs rely on DMCA immunity in the face of what would otherwise be business-altering litigation risk. The DMCA safe harbor is vital to ISPs given subscribers' peer-to-peer file-sharing because ISPs lack the ability (or obligation) to monitor and investigate every instance a subscriber is alleged to use P2P applications to share infringing material," ACA President and CEO Matthew M. Polka said.

ACA's amicus brief was filed with the U.S. Court of Appeals for the Fourth Circuit in support of Cox's effort to overturn a $25 million contributory copyright infringement verdict entered against it at trial despite Cox asserting "safe harbor" immunity privileges under the DMCA.

ACA stressed that failure to reverse the Cox verdict would be particularly crippling to smaller ISPs operating in harder to serve areas, where limited resources would need to be diverted from the

operation of and future investments in their networks. The District Court's erroneous application of copyright law and the DMCA in the case threatens to undermine this key shield against copyright infringement liability which ISPs otherwise would have no ability to avoid.

ACA enumerated a host of errors made by the lower court damaging to Cox, including that it inappropriately imputed knowledge of its subscribers' allegedly infringing activities, ignored Congressional intent to protect ISPs from liability, and ignored the realities of what information an ISP observes with respect to its subscribers' activities. Cox received notices of alleged infringement that were deficient and could not render knowledge sufficient to support contributory infringement liability. In addition to asserting that the District Court's rationale for the argument that notices establish knowledge was unpersuasive, ACA said it was wrong to assume that all notices alleging infringement are true and accurate.

"While preventing copyright infringement is the ultimate goal of the DMCA, demanding

that ISPs who receive millions of notices terminate subscribers, or face potentially ruinous contributory infringement liability, undermines the DMCA's terms and intent and the balance Congress struck between rights of copyright holders, users, and providers of Internet access service," Polka said.

About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing nearly 750 smaller and medium-sized, independent cable companies who provide broadband services for nearly 7 million cable subscribers primarily located in rural and smaller suburban markets across America.  Through active participation in the regulatory and legislative process in Washington, D.C., ACA's members work together to advance the interests of their customers and ensure the future competitiveness and viability of their business.  For more information, visit http://www.americancable.org/

 

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