• by Wendy Davis  @wendyndavis, November 17, 2016

Cox Communications is drawing a broad array of support in its battle over copyright infringement with music publisher BMG Rights Management.

Advocacy organizations like the Electronic Frontier Foundation and Public Knowledge, as well as industry associations like the Internet Commerce Coalition are urging an appellate court to reverse a jury's decision to hold Cox Communications liable for copyright infringement for failing to disconnect subscribers accused of file-sharing.

"Just as a tenant’s water should not ordinarily be cut off when a landlord alleges nonpayment of rent, a subscriber’s connection to the Internet should not be terminated in response to alleged copyright infringement except in the most extenuating circumstances," digital rights groups EFF, Public Knowledge and the Center for Democracy & Technology argue in a friend-of-the-court brief filed this week with the 4th Circuit Court of Appeals.

The groups are weighing in on the battle dating to December 2014, when BMG sued Cox over alleged copyright infringement by subscribers.

Cox countered that it was protected from liability by the Digital Millennium Copyright Act's safe harbors. Those provisions generally immunize broadband providers when users infringe copyright, but only if ISPs have a policy to deal with repeat offenders.

BMG argued that Cox wasn't entitled to the safe harbors because the company didn't disconnect people flagged by BMG -- and its enforcement partner, Rightscorp -- as file-sharers. BMG alleged that Rightscorp sent Cox numerous notifications of alleged infringement, and that Cox didn't take action.

Cox countered that the notifications it received, which were computer-generated by Rightscorp, weren't reliable enough to justify disconnecting users. In some instances, the notices were obviously defective, according to Cox. "Rightscorp typically sent the notices without verifying actual transmissions of copyrighted material from Cox users -- which is why it would, for example, identify an article about the Grateful Dead as an infringing song," the company said in recent court papers.

Last year, U.S. District Court Judge Liam O'Grady in the Eastern District of Virginia rejected Cox's argument. He ruled that Cox wasn't entitled to rely on the safe harbors, because it didn't implement a policy that would have required it to terminate the accounts of repeat infringers.

A jury subsequently found Cox liable for infringement and ordered the company to pay $25 million. The move appeared to mark the first time that an Internet service provider was held responsible for file-sharing by subscribers.

Cox is now appealing that decision to the 4th Circuit Court of Appeals.

The advocacy organizations and industry groups warn that the verdict could spur other Internet service providers to terminate users' accounts based on questionable allegations.

"In the twenty-first century digital economy, the Internet is vital to communication, business and entertainment," the Internet Commerce Coalition says in its friend-of-the-court brief.

The organization adds that if the decision isn't reversed, Internet service providers that receive "unverified, machine-generated infringement claims" will be "incentivized to cut off vital Internet service to users, rather than face costly damages suits."