While reversing and remanding for a new trial in light of certain errors in the jury instructions, the Fourth Circuit Court of Appeals has largely sided with the copyright holders in the dispute between BMG Rights Management and Cox Communications. The case represents a major victory for the music industry in one of its first attempts to hold an internet service provider liable for unauthorized peer-to-peer file sharing by its subscribers. The decision has broad implications beyond the narrow dispute between BMG and Cox.

With respect to two important questions of copyright law on appeal, the Fourth Circuit sided with BMG. First, to receive safe harbor protection under the Digital Millennium Copyright Act, an ISP will be required to take action against a subscriber where there is evidence the subscriber has engaged in repeated acts of infringement, even if the subscriber has never been proven to be an infringer. Second, an ISP can be held contributorily liable for its subscribers’ actions, notwithstanding that the service — providing access to the internet — is capable of substantial noninfringing uses.

Originally published on February 5, 2018 on Law 360.com