A complaint filed in a Virginia court last week on the eve of Thanksgiving vacation (Nov. 26) finds BMG Rights Management and Round Hill Music accusing internet service provider Cox for copyright infringement. The case is unique, being one of the first times that a service provider has been accused of not being protected by the “Safe Harbor” provision of the Digital Millenium Copyright Act. Cox claims 3.9 million subscribers across the U.S.

BMG and Round Hill’s case centers around Title II of the DMCA, which explains the protections given to service providers regarding copyright infringement on a provider’s network. Essentially, Title II gives a service provider effective immunity from any infringement on its network, with two conditions, according to the Copyright Office: “(1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with ;standard technical measures.’” Cox is accused of failing on that first condition.

The two music companies are asserting that they repeatedly pointed out infringement occurring on Cox’s network by employing Rightscorp, an Internet monitoring service that collects data on copyright infringement. BMG and Round Hill contend: “By ignoring the repeat infringement notifications and refusing to terminate internet access for repeat infringers, Cox has made an affirmative decision to contribute to known copyright infringement… [rendering Cox] ineligible for safe harbor immunity from copyright liability under the DMCA.”

The complaint says that Cox “directly profits from repeat infringers” by collecting subscription fees from its users, especially its more expensive, higher bandwidth fees. While Cox did not act on the infringement claims sent by BMG and Round Hill, it’s reasonable to think that the company wouldn’t much care what its users were doing with its service, as long as they were paying fees. What Round Hill and BMG are saying, however, is that Cox willfully ignored its claims in order to protect “over 200,000 repeat infringers” from having to be suspended from its network.

BMG and Round Hill are seeking maximum damages from Cox, which can run up to $150,000 per work infringed.

Cox refused to comment on pending litigation.