• by Wendy Davis , Staff Writer @wendyndavis, November 10, 2016

Last year, the music publisher BMG Rights Management convinced a jury to hold Internet service provider Cox responsible for copyright infringement by its subscribers.

BMG contended that it notified Cox about copyright infringement by subscribers, and that the broadband provider failed to take sufficient action. A jury ultimately sided with BMG and ordered Cox 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 asking a federal appellate court to set aside the verdict.

"If allowed to stand, that judgment would force ISPs to terminate subscribers’ Internet access -- and with it access to critical information, e-commerce, and entertainment -- based on the say-so of third parties," Cox argues in papers filed this week with the 4th Circuit Court of Appeals.

Cox had argued to the trial judge that the company 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.

But 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 that would have required it to terminate the accounts of repeat infringers.

This week, Cox asked the 4th Circuit to reverse that ruling. Among other arguments, the ISP says that the computer-generated notices about file-sharing it received from BMG (through its partner, Rightscorp) weren't reliable enough to warrant action against subscribers.

"None of Rightscorp’s notices identified specific infringing acts," Cox says in its appellate brief. "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 battle between Cox and BMG drew the attention of outside groups including the Electronic Frontier Foundation and Public Knowledge. Those organizations said in a friend-of-the-court brief that broadband providers have no legal obligation to disconnect subscribers based solely on "robosigned" allegations of copyright infringement.

"It is simply unthinkable that a person could be deprived of a basic, vital service, practically essential to contemporary societal participation, based on nothing more than unadjudicated, unverified, unreliable allegations of civil wrongdoing," the EFF and Public Knowledge argued.

BMG is expected to respond to Cox's latest arguments by Dec. 12.