• by Wendy Davis , Staff Writer @wendyndavis, December 2, 2015

A federal judge appears to have just given Internet service providers an incentive to disconnect subscribers who are accused of online piracy. 

U.S. District Court Judge Liam O'Grady in the Eastern District of Virginia said in a ruling issued this week that Cox may be liable for copyright infringement because it failed to kick off alleged infringers.

The decision resolves a key issue in a lawsuit filed one year ago by music publisher BMG against Cox. BMG alleged in its suit that it informed Cox about “thousands of repeated and blatant infringements,” but that Cox didn't move against the subscribers.

The Digital Millennium Copyright Act's “safe harbor” provisions immunize Internet service providers like Cox from liability for activity by users -- but only if the ISPs have policies for handling repeat copyright infringers.

O'Grady said in his ruling that Cox wasn't entitled to rely on those safe harbors because its repeat-infringer policies were lacking.

"The record conclusively establishes that before the fall of 2012 Cox did not implement its repeat infringer policy," O'Grady wrote. "Cox employees followed an unwritten policy put in place by senior members of Cox’s abuse group by which accounts used to repeatedly infringe copyrights would be nominally terminated, only to be reactivated upon request. Once these accounts were reactivated, customers were given clean slates, meaning the next notice of infringement Cox received linked to those accounts would be considered the first in Cox’s ... response procedure."

After 2012, Cox revised its policies to require six-month terminations for people who received multiple warnings. But BMG presented evidence showing that Cox didn't carry out that policy. In one instance cited by O'Grady, a senior engineer for Cox advocated against suspending a customer who had been repeatedly warned about file-sharing. "This customer will likely fail again, but let’s give him one more change [sic]," the Cox engineer wrote, adding that the customer pays $317.63 a month.

Of course, even without relying on DMCA's the safe harbors, Cox can still prevail at the trial if BMG can't prove that the ISP contributed to copyright infringement. Still, many ISPs might decide that it's safer to disconnect accused subscribers than face a trial for copyright infringement.