• by Wendy Davis  @wendyndavis, August 22, 2016

The Internet service provider Cox Communications is appealing a decision ordering it to pay $25 million to music publisher BMG for failing to police piracy on its network.

The verdict, issued by a jury late last year and upheld this month by a trial judge, appeared to mark the first time a broadband carrier was held responsible for copyright infringement by users. Late last week, Cox filed the paperwork to appeal to the 4th Circuit Court of Appeals.

The battle between Cox and BMG dates to 2014, when BMG sued Cox for infringing copyright and for contributing to infringement by users. BMG alleged that it informed Cox about “thousands of repeated and blatant infringements,” but that Cox didn't move against the subscribers.

Cox argued that it was protected by the Digital Millennium Copyright Act's “safe harbor” provisions. Those safe harbors immunize Internet service providers' liability for piracy by users, but only if the ISPs have policies for handling repeat copyright infringers.

U.S. District Court Judge Liam O'Grady in the Eastern District of Virginia ruled last year that Cox wasn't covered by the safe harbors, because it didn't implement a policy regarding repeat infringers.

Instead, until the fall of 2012 Cox "nominally" terminated users who repeatedly infringed copyright, but reactivated their accounts upon request, O'Grady found. In late 2012, Cox began requiring six-month terminations for people who received multiple warnings of copyright infringement, but BMG presented evidence showing that Cox didn't carry out that policy, according to O'Grady.

The digital rights groups Electronic Frontier Foundation and Public Knowledge backed Cox, arguing that the company wasn't obligated to disconnect broadband users based solely on allegations sent by content owners.

There's already some evidence that other Internet service providers are taking note of the decision. In June, RCN asked a federal judge in Manhattan to issue a declaratory judgment that the company didn't infringe copyright.

RCN alleged in a complaint filed in that matter that it's received "millions" of notices from BMG's copyright enforcement outfit, Rightscorp, about alleged piracy by subscribers.

RCN added that it received letters from BMG's counsel in April and May accusing the service of engaging in copyright infringement by failing to disconnect allegedly infringing subscribers.

BMG hasn't yet filed a response to that complaint.