Intellectual Property: Fourth Circuit Remands Closely Watched DMCA Case For Jury Instruction Errors

The Fourth Circuit recently raised the bar for one of the Digital Millennium Copyright Act (DMCA) safe harbor defenses in BMG Rights Management (US) LLC v. Cox Communications, Inc., No. 16-1972 (4th Cir. Feb. 1, 2018). BMG, which owns copyrights in musical compositions, alleged contributory copyright infringement by Internet service providers (ISPs) Cox Communications, Inc. and CoxCom, LLC (collectively "Cox").

The lower court held that Cox was not entitled to the safe harbor defense under Section 512(a) of the DMCA because Cox did not satisfy the conditions under Section 512(i)(1)(A). BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., Case No. 1:14-cv-1611 (Aug. 8, 2016). That section requires ISPs seeking to avail themselves of the safe harbor defense to have "adopted and reasonably implemented . . . a policy that provides for the termination in appropriate circumstances of subscribers . . . who are repeat infringers." As we reported in August 2016, BMG won a