Internet service provider (ISP) Cox Communications Inc. filed a complaint on Monday in the Central District of California alleging that BMG Rights Management (US) LLC and Rightscorp Inc. violated the Digital Millennium Copyright Act (DMCA) by sending them notices to the incorrect address.
According to the complaint, the defendants “engaged in an abusive and unfair campaign” whereby they sent Cox Communications “tens of thousands of invalid notices of alleged copyright infringement with the goal of fabricating massive claims for secondary infringement against Cox.”
Cox contended that if the defendants were legitimately trying to notify its subscribers of the alleged infringement, “they would be sending notices to Cox’s registered agent, as required by law.” Cox claimed that it informed BMG and Rightscorp about this multiple times, but the defendants allegedly continued to misdirect the notices, sending them to the wrong email. Cox proffered that the defendants are trying to “exploit the procedures set forth by the Digital Millennium Copyright Act” by attempting to use these notices “to extract windfall judgments for BMG and Rightscorp’s other prospective clients.”
Cox asserted that because it is an ISP it is entitled to the protections under the DMCA’s safe harbor provision. Specifically, Cox claimed that its policy is compliant with the requirements and it has a registered agent with the U.S. Copyright Office (as do most ISPs) to receive notices of purported infringement. Cox stated that it receives millions of notices each year regarding its internet service subscribers’ conduct, which Cox purportedly processes in accordance with its policy.
Cox claimed that for a notice to be valid and sufficient under the DMCA and to notify Cox about alleged infringement, the rightsholder must notify Cox via its registered agent. Cox noted that it changed the email address for its registered agent in 2017 and “immediately thereafter, virtually every notice sender except for Rightscorp began to send notices to the updated address”; Cox added that it notified the defendants of this change. Nevertheless, Rightscorp on behalf of BMG has purportedly sent “tens of thousands of notices to Cox’s old address,” which, according to Cox, rendered these notices invalid and unactionable.
Cox asserted that it is not processing these notices because it is outside of its established procedures. Consequently, Cox claimed that the defendants have not complied with the requirements of the DMCA.
The claims for relief are declaratory judgment that the defendants’ notices are invalid as a matter of law, violation of California’s Business & Professions Code, electronic trespass to chattels, and negligence.
The plaintiff seeks declaratory judgment in its favor; an injunction; an award for damages, costs, and fees; and other relief.
Cox Communications is represented by Winston & Strawn LLP.
