Cox Refuses to Spy on Subscribers to Catch Pirates

Last December a Virginia federal jury ruled that Internet provider Cox Communications was responsible for the copyright infringements of its subscribers.

The ISP was found guilty of willful contributory copyright infringement and must pay music publisher BMG Rights Management $25 million in damages.

The verdict was a massive victory for the music company and a disaster for Cox, but the case is not closed yet.

A few weeks ago BMG asked the court to issue a permanent injunction against Cox Communications, requiring the Internet provider to terminate the accounts of pirating subscribers and share their details with the copyright holder.

In addition BMG wants the Internet provider to take further action to prevent infringements on its network. While the company remained vague on the specifics, it mentioned the option of using invasive deep packet inspection technology.

Last Friday, Cox filed a reply pointing out why BMG’s demands go too far, rejecting the suggestion of broad spying and account termination without due process.

“To the extent the injunction requires either termination or surveillance, it imposes undue hardships on Cox, both because the order is vague and because it imposes disproportionate, intrusive, and punitive measures against households and businesses with no due process,” Cox writes (pdf).

For one, Cox believes that the proposed injunction is vague. It doesn’t specify what a repeat infringer is and ignores false positives or other complicating situations.

“What if, for example, the subscriber’s computer was infected with malware, the user’s network password was stolen, or a neighbor or guest accessed the user’s account? BMG’s motion and proposed order are silent on these critical questions,” Cox writes.

The Internet provider also rejects the mass-surveillance suggestion. Aside from it being a privacy violation, Cox says it can’t identify and block individual files its subscribers send.

While some measures can be taken to detect overall BitTorrent traffic, its tools can’t easily pinpoint pirated content flowing through its network.

“The evidence at trial showed that Cox cannot use deep packet inspection or other tools to police its users’ activities because surveillance to detect the contents of user transmissions is likely illegal,” Cox writes.

“The evidence showed that Cox does not track where users go on the Internet; that Cox does not know what content passes over its system, and that Cox cannot identify, much less block, which files a subscriber accesses or shares using BitTorrent,” they add.

The spying element is not the only privacy invasion, according to Cox. The copyright holder also asked for the injunction to require the ISP to hand over the personal details of copyright infringers.

Cox notes that this request clearly violates the DMCA. In addition, it threatens the public interest by exposing personal details of subscribers to an “abuser” such as the piracy settlement outfit Rightscorp.

“BMG’s proposed injunction threatens the public interest. It blindly punishes consumers by terminating their Internet access based on mere accusations, invading their privacy, and forcing them into a relationship with known abuser Rightscorp.”

Taking the above into account, Cox is asking the court to deny the proposed injunction, or limit it so it would not require any monitoring or the handing over of private subscriber details.

The court will now review the request from both sides and is expected to rule on the matter during the weeks to come.

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