• by Wendy Davis , Staff Writer @wendyndavis, December 1, 2014

In what appears to be a first, two music publishers have sued broadband provider Cox for allegedly contributing to copyright infringement by failing to kick off subscribers accused of sharing files.

“By providing access to the Internet and the pipes, system, and technology that allows for the storage and transmission of data, and by failing to terminate known repeat infringers. Cox has and continues to materially contribute to the unauthorized reproductions and distributions by its subscribers,” BMG Rights Management and Round Hill Music allege in a federal lawsuit filed last week in the Eastern District of Virginia.

The publishers allege that they informed Cox about “thousands of repeated and blatant infringements,” but that Cox didn't move against the subscribers.

“Despite its published policy to the contrary, Cox's actual policy is to refuse to suspend, terminate, or otherwise penalize subscriber accounts that repeatedly commit copyright infringement through its network in any meaningful numbers,” BMG and Round Hill allege.

The rightsholders allege in their complaint that Cox isn't protected by the Digital Millennium Copyright Act's “safe harbor” provisions, which immunize Internet service providers from liability in certain circumstances. Specifically, the DMCA provides that safe harbors are only available to companies that terminate repeat copyright infringers.

Of course, that qualification only raises the question of how ISPs are expected to decide when someone is a repeat infringer -- especially where, as here, a copyright owner's allegations have never been tested in court.

But Cox might not even need to rely on those safe harbors in order to defeat this lawsuit, according to Internet law expert Venkat Balasubramani. He predicts that BMG and Round Hill will have a hard time convincing a judge to hold Cox responsible for alleged file-sharing by its subscribers.

This seems like a real long-shot,”  he says in an email to MediaPost. “I think even copyright maximalists would have a tough time arguing that providing Internet access contributes to the infringement, or is the type of supervision and control (and benefit) that satisfies the test for vicarious liability.”