From Communications Daily:

The 4th U.S Circuit Court of Appeals decision earlier this year remanding the district court’s 2016 decision (see 1802010026) was the first in a long time when ISPs didn’t get DMCA protection, making it less certain they can rely on Section 512 — limiting liability for material online — for difficult copyright issues, said R Street Institute Director-Tech and Innovation Policy Charles Duan. DMCA Section 512 has obviated the need for courts to address questions of whether ISPs actually are involved in infringement, meaning there’s not much case law there, Duan said. He said defense avenues for Cox could include raising issues about to what extent it participated in the copying actions its users took. He said a key issue for the trial will be the requirement that Cox knowingly engaged in contributory liability. Cox and BMG outside counsel didn’t comment.


Whether another BMG court win will lead to increased litigation against ISPs isn’t clear. The first trial and appeal turned on Cox internal communications, and presumably other ISPs have learned to be sure they’re following their own policies and thus preserving their DMCA defense, Stoltz said. The Cox situation “may have been a fluke,” he said. Added Duan, going after ISPs as a means of tackling copyright infringement isn’t likely a top strategy of copyright holders.

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