Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 1 of 22 Page ID #:1
`
`Jennifer A. Golinveaux (SBN: 203056)
`jgolinveaux@winston.com
`Thomas Kearney (SBN: 267087)
`tkearney@winston.com
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`Telephone: 415-591-1506
`Facsimile: 415-591-1400
`Michael S. Elkin (pro hac vice forthcoming)
`melkin@winston.com
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: 212-294-6700
`Facsimile: 212-294-4700
`Attorneys for Plaintiff
`COX COMMUNICATIONS, INC.
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`COX COMMUNICATIONS, INC.,
`Plaintiff,
`
`v.
`BMG RIGHTS MANAGEMENT
`(US) LLC and RIGHTSCORP, INC.,
`Defendants.
`
`Case No.
`COMPLAINT FOR:
`(1) DECLARATORY JUDGMENT,
`(2) VIOLATION OF CALIFORNIA
`BUSINESS & PROFESSIONS CODE
`§ 17200, (3) ELECTRONIC TRESPASS
`TO CHATTELS, AND
`(4) NEGLIGENCE
`DEMAND FOR JURY TRIAL
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`1
`COMPLAINT
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`2:21-cv-03756
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 2 of 22 Page ID #:2
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`NATURE OF ACTION
`1.
`Defendants BMG Rights Management (US) LLC (“BMG”) and
`Rightscorp, Inc. (“Rightscorp”) (collectively, “Defendants”) have engaged in an
`abusive and unfair campaign of deliberately sending Plaintiff Cox Communications,
`Inc. (“Cox”), an internet service provider, tens of thousands of invalid notices of alleged
`copyright infringement with the goal of fabricating massive claims for secondary
`infringement against Cox. If Defendants were truly trying to notify Cox’s subscribers
`of allegations of copyright infringement, they would be sending notices to Cox’s
`registered agent, as required by law. Cox has informed Defendants of this numerous
`times, yet Defendants persist in misdirecting their notices to an improper email address.
`It is obvious that Defendants’ tactic is a thinly veiled attempt to exploit the procedures
`set forth by the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”), with
`the goal of leveraging their improper notices to attempt to extract windfall judgments
`for BMG and Rightscorp’s other prospective clients. Their approach is improper and
`unlawful, and should be stopped. Cox seeks immediate and permanent redress for
`Defendants’ intentionally wrongful actions.
`2.
`As an internet service provider (“ISP”), Cox is entitled to the protections
`afforded by the DMCA’s “safe harbor” provisions, which immunize ISPs from
`monetary damages in secondary infringement claims where the ISP can demonstrate
`that it has adopted and reasonably implemented a policy that provides for the
`termination (in appropriate circumstances) of subscribers who are deemed repeat
`infringers.
`3.
`As part of Cox’s fully compliant policy, Cox, like most ISPs, maintains a
`registered agent with the U.S. Copyright Office to receive notices of alleged
`infringement. Cox, again like most ISPs, receives millions of notices of infringement
`every year directed at the alleged actions of subscribers of its internet service, and Cox
`processes them in accordance with its policy. The DMCA makes clear, however, that
`for a notice of alleged infringement to be valid—that is, for the notice to be sufficient,
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`2
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 3 of 22 Page ID #:3
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`as a matter of law, to provide Cox notice of, or knowledge about, alleged copyright
`infringement—the rightsholder must send the notice to the ISP’s registered agent at the
`address provided by the ISP.
`4.
`In 2017, Cox changed the address for its registered agent from
`abuse@cox.net to CoxDMCA@cox.net. Cox updated its website and the directory on
`the U.S. Copyright Office’s website to reflect this change. Immediately thereafter,
`virtually every notice sender except for Rightscorp began to send notices to the updated
`address. Despite Cox’s public notice, and despite multiple subsequent requests and
`warnings, Rightscorp persisted in sending on behalf of BMG tens of thousands of
`notices to Cox’s old address. As Cox advised Defendants on numerous occasions,
`including through outside counsel, Rightscorp’s actions rendered the notices invalid and
`unactionable as a matter of law.
`5.
`Defendants’ brazen and deliberate non-compliance with the procedures set
`forth by the DMCA, in the face of Cox’s repeated requests, smacks of tortious
`misconduct. Indeed, rather
`than comply with Cox’s procedures
`like other
`rightsholders—so that Defendants’ notices would be processed and forwarded to Cox’s
`subscribers, potentially stemming the claimed infringement—Defendants knowingly
`and intentionally continue to send Cox notices at an invalid address.
`6.
`It is clear that Defendants have persisted in this blatant non-compliance in
`a calculated effort to manufacture evidence to support a massive secondary
`infringement action against Cox. Plainly, Defendants intend to claim that Cox’s
`decision not to process these invalid notices renders it ineligible for the DMCA’s safe
`harbor protections and, therefore, subject to potentially astronomical monetary
`damages. By improperly holding this threat over Cox, Defendants are causing it
`significant harm.
`7.
`Defendants’ conduct puts Cox in an impossible position, giving it a
`Hobson’s choice of either not processing the notices and facing a risk of massive
`secondary liability claims based on an allegedly defective process for handling notices
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`3
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 4 of 22 Page ID #:4
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`under the DMCA, or needlessly incurring costs and tying up computing resources by
`processing the notices outside of its established procedures, bypassing Cox’s systems
`(in which Cox has invested millions of dollars) for handling notices of alleged copyright
`infringement.
`8.
`Based on the allegations set forth herein, Cox seeks a declaration that:
`(i) Defendants’ notices of alleged copyright infringement sent to abuse@cox.net, which
`is not the address of Cox’s registered agent, are invalid under 17 U.S.C. §§ 512(c)(3)(A)
`and 512(c)(B)(i); (ii) Defendants’ notices sent to abuse@cox.net, which is not the
`address of Cox’s registered agent, are insufficient, as a matter of law, to provide Cox
`notice of, or knowledge about, alleged copyright infringement; and (iii) Defendants’
`persistent acts, in knowingly and deliberately sending notices to the incorrect address
`with the purpose of fabricating massive infringement claims outside the protections of
`the DMCA safe harbors, constitute actionable abusive and tortious misconduct from
`which Cox is entitled to relief. Cox also asserts causes of action for violation of Section
`17200 of the California Business & Professions Code based on Defendants’ unfair
`business practices; electronic trespass to chattels; and negligence. Cox seeks an order
`enjoining Defendants from continuing these abusive practices, monetary damages, and
`any other such further relief that the Court may deem just and proper.
`JURISDICTION AND VENUE
`9.
`The Court has subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331
`and 1338(a), as Cox’s declaratory judgment claim arises under the Digital Millennium
`Copyright Act, 17 U.S.C. § 512. An actual controversy exists between the parties
`pursuant to 28 U.S.C. § 2201. The Court has supplemental jurisdiction over Cox’s other
`causes of action pursuant to 28 U.S.C. § 1367.
`10. This Court has personal jurisdiction over Rightscorp because, on
`information and belief, Rightscorp’s principal place of business is in the State of
`California; Rightscorp is registered to do business, and does do business, in the State of
`California; and Rightscorp has committed the wrongful acts alleged herein from the
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`4
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 5 of 22 Page ID #:5
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`State of California.
`11. This Court has personal jurisdiction over BMG because, on information
`and belief, BMG purposely availed itself of the forum by entering into an agreement
`with Rightscorp, which as alleged above is based in the State of California, to send
`notices of alleged copyright infringement to Cox from the State of California. Cox’s
`claims arise out of actions taken by Rightscorp on BMG’s behalf from the State of
`California. Under the doctrine of vicarious liability, Rightscorp’s forum-related
`activities are imputed to BMG. Further, BMG has been registered to do business in the
`State of California since 2009 and, upon information and belief, maintains a continuous
`and systematic presence in the State of California. Indeed, upon information and belief,
`BMG maintains an office in the forum at 5670 Wilshire Boulevard, Suite 1400, Los
`Angeles, CA 90036.
`12. Venue is proper in this District under 28 U.S.C. § 1391 because a
`substantial part of the events or omissions giving rise to the claims occurred in this
`District.
`
`THE PARTIES
`13. Plaintiff Cox is a Delaware company, with its principal place of business
`in Atlanta, Georgia.
`14. Upon information and belief, Defendant BMG is a Delaware company,
`with its principal place of business in New York, New York and an office in Los
`Angeles, California.
`15. Upon information and belief, Defendant Rightscorp is a Delaware
`company, with its principal place of business in Encino, California.
`16. When Rightscorp sends notices of alleged copyright infringement to Cox
`on behalf of BMG, Rightscorp acts as BMG’s agent; accordingly, BMG is vicariously
`liable for the wrongful acts alleged herein against Rightscorp.
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`5
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 6 of 22 Page ID #:6
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`FACTUAL ALLEGATIONS
`Cox Updates Its DMCA Agent Contact Information
`17. Prior to December 11, 2017, the email address of Cox’s registered agent
`to receive notices of claimed infringement pursuant to the DMCA, 17 U.S.C. § 512(c),
`was abuse@cox.net. This email address was listed on Cox’s website and Cox had
`registered it with the U.S. Copyright Office.
`18. The abuse@cox.net email address was the same one through which Cox
`also received communications regarding some thirty other potential abuses of its
`network, including notifications concerning such critical issues as hacking, spamming,
`phishing, identity theft, denial-of-service attacks, child exploitation, and other illegal
`actions. Responding to such issues is often time sensitive.
`19.
`In December 2017, Cox launched a new state-of-the-art system entirely
`dedicated to handling notices of alleged copyright infringement received from
`rightsholders and their agents, such as Defendants. Cox invested, and continues to
`invest, millions of dollars in building and maintaining this highly automated, dedicated
`system. Because the system exclusively handles notices of alleged copyright
`infringement, Cox established a dedicated email address for such complaints:
`CoxDMCA@cox.net. Cox continued (and continues) to use the abuse@cox.net email
`address to receive complaints regarding the non-copyright-related threats (“abuse
`complaints”) noted above. Such non-copyright-related abuse notices properly sent to
`the abuse@cox.net address are processed through a different Cox system (the “abuse
`system”). Notices of alleged copyright infringement, on the other hand, are processed
`by a third-party vendor that directly receives notices sent to CoxDMCA@cox.net.
`20. After Cox launched its dedicated system, it notified rightsholders and their
`agents that the abuse@cox.net address should no longer be used for notices of alleged
`copyright infringement. Cox instructed the rightsholders and their agents to instead send
`notices to CoxDMCA@cox.net by updating its public-facing website and notifications
`to reflect this change.
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`6
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 7 of 22 Page ID #:7
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`21. Cox also provided this new contact information, including the new email
`address for receiving notices of claimed copyright infringement, to the U.S. Copyright
`Office, as required by the DMCA at 17 U.S.C. § 512(c)(2). The U.S. Copyright Office
`listed
`the contact information for Cox’s DMCA agent,
`including
`the new
`CoxDMCA@cox.net email address, in the public electronic directory of DMCA agents
`that the U.S. Copyright Office maintains.
`Defendants Persist in Sending Invalid Notices of Alleged Infringement
`22. Following Cox’s update, virtually every rightsholder and agent began to
`use the new email address—except for Defendants. Defendants continued to send Cox
`notices to the old—wrong—email address.
`23. On October 2, 2018, Cox’s Senior IP Counsel sent an email to Rightscorp
`at the address support@rightscorp.com, notifying Rightscorp that “Cox ha[d] changed
`the email address where Rightsholders, or Designated Agents on their behalf, are to
`send their allegations of copyright infringement pursuant to the DMCA. Henceforth
`please send all notices to CoxDMCA@cox.net. This email address is now the email
`address of record on file with the US Copyright Office for DMCA related
`communications.” Cox requested confirmation of receipt of the notification. Although
`Rightscorp did not respond, Cox did not receive an error message in response to the
`email. Upon information and belief, support@rightscorp.com is a valid email address
`of Rightscorp to this day.
`24. On January 22, 2019, Cox’s Senior IP Counsel sent another email to
`Rightscorp,
`this
`time both
`to
`the address
`support@rightscorp.com and
`contact@rightscorp.com. Cox referenced its prior October 2, 2018 email and again
`notified Rightscorp that “Cox has changed the email address where Rightsholders, or
`Designated Agents on their behalf, are to send their allegations of copyright
`infringement pursuant to the DMCA. Henceforth please send all notices to
`CoxDMCA@cox.net. This email address is the address of record on file with the US
`Copyright Office and should be used for DMCA related communications.” As with the
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`COMPLAINT
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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 8 of 22 Page ID #:8
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`prior email, Cox requested confirmation of receipt of the notification. Again, while
`Rightscorp did not respond, Cox did not receive an error message in response to these
`emails either. Upon information and belief, contact@rightscorp.com is also a valid
`email address of Rightscorp to this day.
`25. After it received this second email, however, Rightscorp stopped sending
`Cox notices. Accordingly, on February 15, 2019, Cox’s Senior IP Counsel advised
`Rightscorp that it had not received any notices of alleged infringement from Rightscorp
`(to any address) and requested that Rightscorp confirm that it was sending notices to
`the correct address. Cox wanted to ensure that if Rightscorp had notices to send, Cox
`would receive them and thus process them. Rightscorp did not respond, although Cox
`did not receive an error message in response to its email.
`26. This reprieve was short-lived. In July 2019, Rightscorp resumed sending
`Cox notices to the wrong email address. In response, on August 5, 2019, Cox’s Senior
`IP Counsel advised Rightscorp that it “ha[d] been sent no less than four notifications
`that Cox no longer receives take-down notices at the abuse@cox.net account, and
`instead all notices should be sent to CoxDMCA@cox.net.” Cox again requested
`confirmation of receipt of its email but Rightscorp did not respond, although, as with
`its prior emails, Cox did not receive an error message in response.
`27. During the ensuing months, Rightscorp wrongfully continued to barrage
`Cox with tens of thousands of notices, ignoring Cox’s repeated requests to send the
`notices to the correct address.
`28. Although it was under no obligation to do so, during this time, Cox
`configured its email servers so that Defendants’ notices erroneously sent to
`abuse@cox.net would be forwarded to CoxDMCA@cox.net, the correct address, and
`processed in accordance with Cox’s policies, as though they had been properly sent.
`Cox did so in order to attempt to mitigate the harm wrought by Defendants’ actions and
`address their allegations of claimed copyright infringement.
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`8
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 9 of 22 Page ID #:9
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`29. Defendants’ abusive actions harmed Cox. Among other
`things,
`Defendants’ persistence in sending notices of alleged infringement to the wrong email
`address impacted Cox’s ability to fully transition that address to be operationally
`devoted to handling other forms of abuse complaints. Further, the sheer volume of
`notices Defendants sent to this address, and the way in which Cox processed them,
`consumed Cox’s computer and human resources.
`30. On June 11, 2020, Cox’s outside counsel sent Rightscorp a letter via
`certified mail to the Encino, California business address that Rightscorp had registered
`with the California Secretary of State, as well as to Rightscorp’s agents for service of
`process registered with the Delaware Department of State (Rightscorp’s state of
`incorporation) and the California Secretary of State (Rightscorp’s principal place of
`business). Cox also sent a copy of the letter via email to the “Contact Us” email address
`listed on Rightscorp’s website.
`31.
`In this letter, counsel again explained on behalf of Cox that Cox “has
`registered an agent to receive notices of claimed copyright infringement from rights
`holders or their agents” and that “[s]uch notices are effective under the DMCA only if
`a notice sender submits them to a service provider’s designated agent, using the
`appropriate contact information.” Cox’s counsel’s letter further explained that the email
`address for Cox’s designated DMCA agent has been changed to CoxDMCA@cox.net,
`and noted that this information was available on Cox’s website and had been provided
`to the U.S. Copyright Office. Cox’s counsel also advised Rightscorp that “[e]ffective
`immediately, Cox will no longer receive or process notices of claimed infringement sent
`to the abuse@cox.net email address. Notices of claimed infringement submitted to that
`email address are insufficient, as a matter of law, to provide Cox notice of, or knowledge
`about, alleged copyright infringement.”
`32. Since Cox’s counsel had sent this letter to each of the three street addresses
`for Rightscorp via certified mail, it was able to confirm that each copy of the letter was
`actually received and signed for. In addition, Cox did not receive an error message in
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`9
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 10 of 22 Page ID #:10
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`response to the email it sent (attaching a copy of the letter) to Rightscorp’s email address
`of record.
`33. Although Rightscorp never responded to this letter, it stopped sending Cox
`notices for several months, from July 2020 through December 18, 2020.
`34. During this lull in Rightscorp notices, Cox reconfigured its email servers
`such that any notices of alleged copyright infringement that might be sent to
`abuse@cox.net would no
`longer be
`forwarded
`to CoxDMCA@cox.net—
`CoxDMCA@cox.net, after three years, would finally become the fully functional and
`automated system for handling notices of alleged infringement that Cox had designed.
`This step was consistent with Cox’s June 2020 notification to Rightscorp that Cox
`would no longer process notices of alleged copyright infringement sent to
`abuse@cox.net. And, indeed, Rightscorp had not sent any notices to Cox (at any
`address) following that June 2020 notification.
`35. Another part of this reconfiguration was that Cox would send a “bounce-
`back” email to any sender of a notice of alleged copyright infringement to the
`abuse@cox.net address, which informed the sender that Cox would not process the
`notice and of the proper address to which to direct such notices.
`36. However, shortly after Cox reconfigured its system, and implemented
`bounce-back notifications, Defendants resumed sending large numbers of notices to the
`wrong address. Indeed, over just a few weeks between December 2020 and January
`2021, Rightscorp sent Cox more than 50,000 notices.
`37. On March 26, 2021, Cox’s outside counsel sent Rightscorp another letter,
`again via certified mail to the Encino, California business address Rightscorp had
`registered with the California Secretary of State, as well as Rightscorp’s agents for
`service of process registered with the California Secretary of State and the Delaware
`Department of State. Cox’s counsel again sent a copy of this letter via email to the
`“Contact Us” address listed on Rightscorp’s website. In addition, Cox’s counsel sent
`copies of the letter to the street address that Rightscorp had provided in its notices and
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`10
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 11 of 22 Page ID #:11
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`the email address from which the notices were sent.
`38. As with its prior letter, since Cox’s counsel had sent this letter to
`Rightscorp’s street addresses via certified mail, it was able to confirm that Rightscorp
`received a copy through its registered agents for service of process in both California
`(its principal place of business) and Delaware (its state of incorporation). In addition,
`Cox did not receive an error message in response to the email it sent to
`support@righstcorp.com attaching a copy of the letter. Though the previous letter to
`Rightscorp’s business address had been delivered and accepted, this time the letter was
`marked “Return to Sender” and returned as undeliverable, even though the mailing
`address was (and remains) the business address that Rightscorp has on file with the
`California Secretary of State. This time, Cox’s counsel also sent a copy of the letter to
`the street address Rightscorp provided on its notices of claimed infringement to Cox.
`But this letter too was marked “Return to Sender” and returned as undeliverable.
`39.
`In this letter, Cox again advised Rightscorp that it “no longer processes
`notices of claimed infringement sent to the previous abuse@cox.net email address,” and
`reiterated that “[n]otices of claimed infringement submitted to that email address are
`insufficient under the DMCA to provide Cox notice of, or knowledge about, alleged
`copyright infringement.” Cox further advised Rightscorp that it was also sending a copy
`of the letter to BMG to ensure that BMG was aware that Rightscorp was sending
`improper notices on its behalf, and that it understood that such notices had not been and
`would not be processed. Cox sent that letter via U.S. mail to BMG’s registered agent
`for service of process in the State of New York (its state of incorporation).
`40. Although neither Rightscorp nor BMG responded to this letter, in the two
`weeks after it was sent (by both certified U.S. mail and email), Rightscorp sent more
`than 30,000 notices to Cox to the improper abuse@cox.net address.
`41. Since December 2020, when Cox stopped forwarding Defendants’
`improper notices to CoxDMCA@cox.net, and Cox had begun sending bounce-back
`notifications, Defendants have sent tens of thousands of notices to Cox, all of which are
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`11
`COMPLAINT
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`

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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 12 of 22 Page ID #:12
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`improper and legally invalid under the DMCA. Indeed, in the month of April 2021
`alone, Rightscorp sent Cox more than 75,000 invalid notices.
`42. Cox has been forced to expend significant resources in order to identify
`and remove these notices from its abuse@cox.net inbox and close out and archive the
`internal tickets generated by these defective emails. Because Cox no longer forwards
`these notices to CoxDMCA@cox.net, the improper notices must be processed through
`Cox’s systems that are supposed to be dedicated to handling non-copyright abuse
`complaints, a process which needlessly consumes both computing and human
`resources. As is widely recognized, including specifically with respect to Rightscorp’s
`notoriously abusive and defective practices, ISPs can incur costs (as Cox does) in
`processing notices even if they are deemed defective or invalid.1
`43. The harm Defendants have caused to Cox is ongoing, as Cox continues to
`needlessly incur expenses, all the while facing the uncertainty of an ever-mounting risk
`of litigation. All of this is due to Defendants’ persistence in flooding Cox’s system with
`their defective notices despite repeated warnings to correct their actions.
`Defendants’ Improper Attempt to Fabricate Mass Infringement Claims
`Against Cox
`44. Upon information and belief, Rightscorp has been sending notices to ISPs
`on behalf of rightsholders since at least 2011. During this time, Rightscorp has sent tens
`of millions of notices to ISPs on behalf of BMG alone.
`45. Rightscorp’s business plan is simple, and corrupt: it floods an ISP with an
`enormous number of notices, each of which purports to accuse an internet subscriber of
`copyright infringement. It demands that the ISP forward the notices to the accused
`subscribers. And with each notice that is forwarded, Rightscorp attempts to extort the
`receiving subscriber into making a monetary settlement with Rightscorp, by threatening
`
`
`1 See Jennifer Urban, et al., Notice and Takedown in Everyday Practice (2016),
`https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2938642_
`available
`at
`code1788303.pdf?abstractid=2755628&mirid=1.
`
`
`
`12
`COMPLAINT
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`

`

`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 13 of 22 Page ID #:13
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`them with loss of internet service, federal litigation, and potentially ruinous statutory
`damages.
`46. Rightscorp’s notoriously abusive tactics on behalf of BMG are well-
`documented. For instance, upon information and belief, in 2016, Rightscorp settled for
`$450,000 class-action claims based on its abusive efforts to extract settlements through
`repeated calls, emails, serial frivolous subpoenas, and other improper actions directed
`at ISP subscribers, which were alleged to have been taken on behalf of its client BMG.
`See Karen J. Reif et al. v. Rightscorp, Inc. et al., Case 2:14-cv-09032 (C.D. Cal.).
`47. Upon information and belief, Rightscorp has improperly extracted
`substantial sums from internet subscribers for its own pecuniary gain through its
`extortionate practices.
`48.
`Indeed, upon information and belief, because of Rightscorp’s unsavory and
`illegal practices, which it brazenly promotes, many rightsholders have refused to
`authorize it to send notices on their behalf, for fear of recrimination from the public.
`49. This reputation notwithstanding, Rightscorp also markets its notice records
`to rightsholders, offering them as a basis to mount massive secondary infringement
`cases against ISPs, such as in BMG Rights Mgmt. (US) LLC et al. v. Cox Enterprises,
`Inc. et al., Case 1:14-cv-01611-LO-JFA (E.D. Va.), UMG Recordings, Inc. et al. v.
`Grande Communications Networks LLC et al., Case 1:17-cv-00365-LY-AWA (W.D.
`Tex.), and UMG Recordings, Inc. et al. v. RCN Telecom Services, LLC, et al., Case
`3:19-cv-17272-MAS-ZNQ (D.N.J.).
`50. Upon information and belief, one of Rightscorp’s practices is to flood
`ISPs’ systems with duplicative notices for the exact same alleged infringement—for
`example, sending multiple notices, each regarding the same subscriber and the same
`content, all within the same day. Rightscorp engages in this tactic to make it appear that
`such subscribers are “repeat infringers.” On information and belief, its goal in doing
`this is to attempt to compromise the ISPs’ entitlement to the DMCA safe harbor
`protections, by making it appear (though falsely) that infringement is rampant—when
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`13
`COMPLAINT
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`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 14 of 22 Page ID #:14
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`in reality, Rightscorp is double, triple, quadruple, and n-tuple counting each instance of
`supposed infringement. Upon information and belief, this likely is the case with the vast
`majority of the notices that Defendants have sent to Cox.
`51. Upon information and belief, Rightscorp markets itself to prospective
`clients with claims that its notices can serve as the basis for windfall damages in massive
`infringement suits against ISPs.
`52. Upon information and belief, Rightscorp has refused to comply with Cox’s
`request to send notices to the correct CoxDMCA@cox.net email address in a thinly
`veiled effort to fabricate potentially massive secondary infringement claims against Cox
`for Rightscorp’s client BMG and other prospective clients.
`53. Upon information and belief, BMG intends to utilize Rightscorp’s tens of
`thousands of improper notices to file massive, trumped-up secondary infringement
`claims against Cox.
`54. Upon information and belief, Defendants understand that if they had sent
`notices to the correct address, Cox would have processed the notices in accordance with
`its fully compliant DMCA policies and Defendants would not otherwise have claims
`against Cox.
`55.
`Indeed, if Defendants’ true intent had been to put Cox on notice of
`allegations of infringement by Cox’s subscribers so that Cox could do something about
`it, Defendants would have sent their notices to the correct address so that they could be
`processed by Cox—as required by the DMCA, and as Cox has repeatedly requested.
`56. Upon information and belief, Defendants intentionally and knowingly sent
`notices to the incorrect address because they were relying on Cox’s statement that it did
`not and would not process those tens of thousands of invalid notices. On information
`and belief, Defendants hope to fabricate an argument that Cox should not be entitled to
`DMCA safe harbor protection because it failed to appropriately terminate putative
`“repeat infringers,” as provided by 17 U.S.C. § 512(i)(1)(A).
`57. Absent a DMCA safe harbor, ISPs can face potentially enormous liability
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`14
`COMPLAINT
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`

`Case 2:21-cv-03756 Document 1 Filed 05/03/21 Page 15 of 22 Page ID #:15
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`in mass secondary infringement cases, so the threat of losing safe harbor—even a
`trumped-up threat—can cause serious harm.
`CLAIM ONE
`FOR A DECLARATORY JUDGMENT THAT DEFENDANTS’
`NOTICES ARE INVALID AS A MATTER OF LAW
`58. Cox repeats and re-alleges each and every allegation contained in
`paragraphs 1 through 57 as if fully set forth herein.
`59. Between in or around December 2017, when Cox updated its agent
`address, and the present, Defendants have sent Cox hundreds of thousands of notices to
`the incorrect address, abuse@cox.net.
`60. After developing and implementing a process for dealing with notices of
`alleged infringement separate and apart from its predecessor system, and since June
`2020, Cox has represented to Defendants that it would not process these notices, and
`informed Defendants that the notices are both invalid under 17 U.S.C. §§ 512(c)(3)(A)
`and 512(c)(B)(i), and insufficient, as a matter of law, to provide Cox notice of, or
`knowledge about, alleged copyright infringement.
`61. Defendants have persisted in sending Cox tens of thousands of notices to
`the incorrect address and have never responded to Cox’s requests f