As the father of two sons, this is a conversation I've had on more than one occasion:
ME: You know you're supposed to be doing ABC and XYZ, right?
SON: (annoyed) Yeah Dad, I know.
ME: Then why aren't you doing it?
The same goes for Internet Service Providers like Cox Communications and Grande Communications. They are supposed to, under the terms of the Copyright Acts section 512(i)(1)(A), "adopt and reasonably implement . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders . . .who are repeat infringers."
They know they're supposed to be doing this, so why don't they do it?
For Cox, it was taking the extreme position that "repeat infringers" meant that the subscribers had to have been found guilty of copyright infringement by a Court of law on more than one occasion.[ref]14 Strikes and You're Out! (Maybe): How Cox Communications Lost its DMCA Safe Harbor[/ref] This, of course, would have the effect of making the process envisioned by 512(i)(1)(A) completely unworkable. Which is exactly what Cox Communications wanted. Needless to say, the Fourth Circuit Court of Appeals rejected this argument,[ref]Cox Communication's DMCA Policy Based on Money, Not the Law, Rules Court of Appeals[/ref] ruling:
"[T]he evidence shows that Cox's decisions not to terminate had nothing to do with ‘appropriate circumstances' but instead were based on one goal: not losing revenue from paying subscribers."[ref]BMG Rights Management (US) LLC v. Cox Communications, Inc. United States Court of Appeals, Fourth Circuit. February 01, 2018 — F.3d —- 2018 WL 650316 at page 20[/ref]
Grande Communications out-performed Cox on this front. Instead of a "14 strikes and you're out (maybe) policy,"[ref]14 Strikes and You're Out! (Maybe): How Cox Communications Lost its DMCA Safe Harbor[/ref] Cox took the bold position of having a policy and doing nothing to enforce it.[ref]UMG Recording et al v. Grande Communications U.S. District Court for the Western District of Texas, Case No. 1:17-CV-365-DAE at page 8. All references are to the original pagination of the Order.[/ref] The Court in adopting the Magistrate's report made this significant quote:
"The undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer's internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice."[ref]Id.[/ref]
Consider that:
- "[F]rom 2010 through 2016, Grande did not have any specific policies or procedures providing for how it would actually go about terminating any such infringing customers."[ref]Id. at 10[/ref]
- "In internal emails, one Grande employee even stated that ‘we have users who are racking up DMCA take down requests and no process for remedy in place.'"[ref]Id.[/ref]
- During of period of almost 7 years, Grande received over 1 million copyright infringement notices.[ref]Id. at 11[/ref]
- Grande was tracking over 9,000 customers for excessive copyright violations.[ref]Id.[/ref]
- One Grande customer had racked up 54 violations, but was not terminated.[ref]Id.[/ref]
- Not a single Grande customer was terminated for copyright infringement between October 2010 and May 2017.[ref]Id.[/ref]
- "Grande's Corporate Representative… admitted that until 2017 it would not terminate a user for infringement ‘regardless of the source of any notice,' ‘regardless of the content of any notice,' and ‘regardless of the volume of notices . . . for a given customer.'"[ref]Id.[/ref]
- Only after this lawsuit was filed did Grande terminate any customers at all, and even then only 11 customers in the remainder of 2017.[ref]Id.[/ref]
- There is no evidence it induced the direct infringement committed by its customers
- There is no recognized independent contributory liability theory of "material
- contribution"
- That even if there is, there is no evidence Grande's conduct materially contributed to direct infringement
- There is no evidence Grande had actual knowledge of direct infringement by its customers.