Fourth Circuit Clarifies That “Repeat Infringers” In DMCA Safe Harbor Provision Are Not Repeat Infringers As Adjudged By A Court

Fitzpatrick Case Update
February 1, 2018

On February 1, 2018, the United States Court of Appeals for the Fourth Circuit, in BMG Rights Management (US) LLC v. Cox Communications, Incorporated (No. 16-1972), held that Cox, an internet service provider (“ISP”), was not entitled to the safe harbor of 17 U.S.C. § 512(a) of the Digital Millennium Copyright Act (“DMCA”).  In so holding, the Fourth Circuit rejected Cox’s argument that the § 512(a) safe harbor requires that an ISP take action only against subscribers who are adjudged in court to be “repeat infringers.”  The Fourth Circuit also clarified that contributory copyright infringement liability requires more than just negligence on the part of the ISP, and that the district court below erred in instructing a jury otherwise.  Accordingly, the Fourth Circuit remanded the case for a new trial.

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