Background - BMG (music publisher) sued Cox (ISP) for contributory and vicarious copyright infringement based on subscribers’ BitTorrent file‑sharing of BMG works. - Cox operated a thirteen‑strike automated notice system that escalated from warnings to temporary suspensions and, nominally, termination after the thirteenth strike; Cox rarely terminated and routinely reactivated accounts before Sept. 2012. - Cox refused to process notices from Rightscorp that included settlement offers and later blacklisted Rightscorp, so Cox never viewed millions of Rightscorp notices sent on BMG’s behalf. - The district court granted summary judgment to BMG on Cox’s assertion of the DMCA §512(a) safe harbor, finding Cox did not reasonably implement a repeat‑infringer termination policy. - A jury found Cox willfully contributorily liable and awarded $25 million; Cox appealed, challenging the safe harbor ruling and jury instructions. - The Fourth Circuit affirmed denial of the DMCA safe harbor, but reversed and remanded for a new trial because the contributory‑infringement jury instructions misstated the required mental state. ### Issues | Issue | Plaintiff's Argument (BMG) | Defendant's Argument (Cox) | Held | |---|---:|---:|---:| | Meaning of “repeat infringer” in §512(i) | "Infringer" covers those who actually engage in repeated infringement (need not be adjudicated). | Term should mean adjudicated repeat infringer only. | Court: "repeat infringer" is not limited to adjudicated infringers; ordinary meaning (repeated infringement) controls. | | Whether Cox reasonably implemented a §512(i) repeat‑infringer policy | Cox’s practice (reactivating terminations, blacklisting Rightscorp) shows failure to meaningfully enforce policy. | Cox claims its policy existed and was flexible; lack of terminations reflects lack of actual knowledge or appropriate circumstances. | Court: Cox failed to reasonably implement its policy (routine reactivations, refusal to process notices), so no §512(a) safe harbor. | | Required mental state for contributory infringement | Knowledge or willful blindness to specific instances suffices; negligence («should have known») insufficient. | Jury should have been permitted to find liability on a negligence/"should have known" standard and on generalized knowledge of network‑wide infringement. | Court: Contributory infringement requires at least willful blindness or actual knowledge of specific acts; negligence and generalized knowledge are too low. Instruction error warranted new trial. | | Effect of a product’s substantial noninfringing uses (Sony defense) | N/A (BMG) | Cox: its technology’s substantial noninfringing uses preclude contributory liability; court should instruct jury accordingly. | Court: Sony does not immunize defendants whose conduct shows intent to induce or who are willfully blind; requested instruction misstates law and was properly refused. | ### Key Cases Cited Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (Sup. Ct. 1984) (product capable of substantial noninfringing uses limits imputation of intent but does not foreclose liability where inducement or intent exists) Metro‑Goldwyn‑Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (Sup. Ct. 2005) (contributory liability requires intent to induce; intent may be inferred under common‑law rules such as knowledge or willful blindness) Global‑Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (Sup. Ct. 2011) (willful blindness is equivalent to actual knowledge; negligence or recklessness is insufficient for inducement‑style liability in patent context) Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (service with substantial noninfringing uses can nonetheless materially contribute to infringement) * In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003) (ISP that disables itself from preventing infringement does not reasonably implement a repeat‑infringer policy)