Representing copyright Scott-Hervey-10-webowners attempting to enforce online infringement is often routine, but can sometimes prove challenging. This tends to be the case when a content owner is trying to address large scale infringement of one or multiple works. Most often ISPs are cooperative, but on occasion an ISP may resist responding to a content owner when the owner is represented by an organization like Rightscorp — often referred to as “copyright trolls.” Based on the recent ruling by the Eastern District Court of Virginia against Cox Communications, an ISP is taking a huge risk ignoring infringement notices sent by Rightscorp or any similar organization.

In December of 2014, music publishers BMG Rights Management US, LLC and Round Hill Music LP sued Cox Enterprises Inc. for contributory and vicarious copyright infringement. In the complaint the music publishers allege that the ISP waived its immunity from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”) by disregarding numerous takedown notices sent on their behalf by their agent, Rightscorp, and otherwise failing to terminate the accounts of repeat infringers.

The DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty and to update domestic copyright law for the digital age. In particular, the DMCA established a series of four “safe harbors” that allow qualifying Internet service providers to limit their liability for claims of copyright infringement based on (a) “transitory digital network communications,” (b) “system caching,” (c) “information residing on systems or networks at [the] direction of users,” and (d) “information location tools.” 17 U.S.C. §§ 512(a)-(d). To qualify for protection under any of the safe harbors, the ISP must, among other requirements, adopt and implement a “repeat infringer” policy that provides for the termination of account holders.


Continue Reading ISPs That Ignore Notices From “Copyright Trolls” Risk Losing DMCA Safe Harbor Protections

In a sensible decision, the Ninth Circuit Court of Appeals recently ruled that Amazon.com Inc. is not vicariously liable for copyright infringement based upon the conduct of its Associates who use copyrighted photos without permission on their linked websites.

This decision is particularly important because there are an increasing number of “copyright trolls” patrolling various Internet websites. These trolls, sometimes using computerized software to locate allegedly protected images, engage in “hit and run” litigation whereby they identify an alleged act of infringement and then seek a nominal — but still significant  — sum (usually less than $5,000) to instantly settle the case. They even go so far as putting in credit card payment information in their “dunning letters.” Intent is not a factor. The trolls well know that establishing a fair use defense is probably more costly than simply settling the case. An entire industry is now being built on these kinds of spurious lawsuits, where a few years ago a polite takedown notice would have been all that was required.
Continue Reading Vicarious Liability Under the Lanham Act: The Amazon Affiliate Case