August 11, 2016 | Category: Uncategorized | Tags: contributory infringement, copyright, Cox Communications, DMCA, permanent injunction, repeat-infringer policy, Rightscorp, safe-harbor, Sony-Betamax Rule | Comments: 0Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Court: Actual Knowledge Kills Sony-Betamax Dead, and That Might Make a Difference
Hey, I sort of called it. In my last blog post, I embarked on a journey of self-discovery in which I learned that ISPs were not effectively immune to claims for constructive copyright infringement. In this journey, I had to come to terms with the real possibility that the Sony-Betamax rule—that a product cannot create contributory copyright liability if it has substantial non-infringing uses—applies only where the claim is based on “constructive” knowledge (i.e., you should have known, as opposed to, you knew). This explained something that had puzzled me: why was Cox Communications even liable for the claims of contributory copyright infringement brought by Rightscorp? After all, internet service has a tremendous number of non-infringing uses. The answer (in my analysis) was: because Cox had actual knowledge of its customers’ infringement, for the same reason its repeat-infringer policy was such a hilarious shambles.
Actual Knowledge + Current Continuing Relationship
Earlier this week, the court in the Cox Communications case ruled on some post-judgment motions and followed very much the same reasoning in denying Cox’s motion challenging the jury verdict. Regarding the application of the Sony-Betamax rule, the court this…