BMG Rights Management (US) LLC v. Cox Communications, Inc. (149 F. Supp. 3d 634, 2015)

MEMORANDUM OPINION

Liam O’Grady, United States District Judge

In this copyright action, the putative owners of more than 1,400 musical composition • copyrights seek to hold Cox Communications, Inc. and Cox Com, LLC (collectively, “Cox”) eontributorily and vicariously liable for alleged copyright infringement taking place over its high-speed internet service. At the close of extensive discovery, the parties cross-moved for summary judgment. Following oral argument, the Court issued an Order (Dkt. No. 675) granting in 'part and denying in part Plaintiffs’ Motion for Partial Sum; mary Judgment (Dkt. No. 310) and denying Cox’s Motion for Summary Judgment (Dkt. No. 305) for the reasons stated in this memorandum opinion.

I. Background

Cox provides high-speed internet service to customers nationwide. Plaintiffs BMG Rights Management (US), LLC (“BMG”) and Round Hill Music LP aré the. putative owners or administrators of approximately 1,400 musical composition copyrights. Plaintiffs allege users of Cox internet service employ BitTorrent, a type of peer-to-peer (“P2P”) file sharing, to Illegally upload and download music files, thereby violating Plaintiffs’ exclusive rights.

A. BitTorrent

The innovation of P2P file sharing is that it allows “user’s computers [to] communicate directly with each other,” rather than through-a central- server. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 919, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). All P2P protocols have “one thing in common: a decentralized infrastructure whereby each participant in the network (typically called a ‘peer,’ but sometimes called a ‘node’) acts as both a supplier and consumer of information resources.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024 (9th Cir.2013). While P2P protocols have many benefits and non-infringing uses, see Grokster, 545 U.S. at 920, 125 S.Ct. 2764 (noting that P2P. networks are “employed to store and distribute files by universities, government agencies, corporations, and libraries, among others”), they have also been harnessed for less meritorious purposes by “those wanting access to pirated media, [such as] music, movies, and television shows.” Columbia Pictures Indus., Inc., 710 F.3d at 1025.

The BitTorrent protocol is unique in “how it facilitates file transfers.” Id. at 1026. BitTorrent breaks files into pieces, which “permits users to download, lots of different pieces at the same time from different peers.” Id. It also allows users to begin sharing before the complete file has downloaded, meaning “at any given time, each user is both downloading and uploading several different, pieces of a file from and to multiple other users.” Id. at 1027.

B. Rightscorp, Inc.

Plaintiffs enlisted Rightscorp, Inc. (“Rightscorp”) as their agent to identify infringing uses of their copyrighted works. Rightscorp’s software searches websites that index torrent files and identifies files that appear to contain one or more of the Plaintiffs’ copyrighted, works. Defs.’ SUMF ¶ 19. A torrent file does not actually contain any content. Id. ¶ 18. It contains metadata about the files available to be distributed and other information that allows Rightscorp to contact a tracker and find peers offering torrent payloads that contain the files. Id. If Rightscorp contacts a peer and determines that the peer has the torrent payload, Rightscorp will record the date, time, the peer’s IP address, the port on the peer’s computer through which the connection was made, the torrent file’s unique hash value, and the name of the copyrighted work. Pis.’ SAMF ¶ 7. Right-scorp then sends a notice of infringement to the internet service provider associated with the recorded IP address. Id. According to Plaintiffs, Rightscorp sent Cox 2.5 million notices corresponding to instances in which Cox internet users offered one of Plaintiffs’ copyrighted works for download. Id. ¶ 15. Plaintiffs also contend that Rightscorp downloaded more than 100,000 full copies of music files that violated Plaintiffs’ musical composition copyrights from peers through Cox’s internet service. Id. ¶ 10.

C. Cox’s Copyright Policy and Graduated Response Procedure

Cox’s Acceptable Use Policy (“AUP”) provides that account holders may not use Cox’s internet service “to 'post, copy, transmit, or disseminate any content that infringes the patents, copyrights, trade secrets, trademark, moral rights, or propriety rights of any party.” Theodore Decl. Ex. 10; Trickey Deck ¶ 11. The AUP further provides that “[v]iolation of any terms of this AUP may result in the immediate suspension or ■ termination of either ... access to the Service and/or [the] Cox account.” Theodore Deck Ex. 10; Trickey Deck ¶ 11. Cox informs account holders of the policy in subscriber agreements. Trick-ey Deck ¶ 12. The terms on Cox’s website also incorporate the AUP’s policy by reference. Id. ¶ 13.

Cox’s abuse department handles misconduct on Cox’s network. Abuse ranges from copyright infringement to hacking to excessive bandwidth usage. Pis.’ SUMF ¶ 17. Cox offers copyright owners an email address, abuse@cox.net, to which they can send notices of infringement. Beck Deck ¶ 3. Cox processes the notices it receives using a largely automated system called CATS — Cox Abuse Tracking System. Pis.’ SUMF ¶ 19. CATS scans the messages' in the inbox and culls certain information, such as the date of the alleged abuse, the IP address, and so on. Beck Deck ¶ 7. That information is then used to create a “ticket.” Id. ¶ 3.

Three features of the CATS system are worth mentioning. First,, when Cox receives multiple complaints in one day for a single account, the tickets are “rolled up,” meaning Cox counts only the first ticket. Id. ¶ 8 & n.4; Zabek Deck' ¶ 9; Theodore Deck Ex. 1 at'155-56. Second, Cox imposes a “hard limit” on the number of complaints a complainant can submit that will receive customer-facing action.' Beck Deck ¶ 8. If a complainant exceeds the hard limit, CATS automatically.sends an email informing the complainant that the daily limit has been reached and the tickets created from those emails are automatically, closed..Theodore Decl. Ex. 42 at 7. The default limit is 2Q0 complaints per complainant per day, but Cox says it will work with a complainant to set a reasonable number. Id.; Zabeck Deck ¶ 30. Cox claims Such limits are necessary to keep the number of complaints at a manageable capacity for staff and to prevent a single complainant from overwhelming the company. Beck Deck ¶ 10. Third, Cox defines its “abuse cycle” in 180-day periods. Theodore Deck Ex. 17 at 2. While Cox maintains a record of its customers’ full ticket histories, if no complaints are received within six months from the last complaint, the cycle restarts. Id.; Zabek Deck ¶ 9.

Cox handles tickets generated by CATS according to its graduated response procedure. Beck Deck ¶ 12; Theodore Deck Ex. 39 at 10; id. Ex. 17. This process, which Cox does not publicize to customers, progresses from warnings to suspensions and ultimately, the possibility of termination. Theodore Deck Ex. 17 at 11-12. Cox takes no action on an account’s first ticket because a “substantial percentage” of accounts never receive a second complaint within one abuse cycle. Zabek Deck ¶ 9; Theodore Deck Ex. 17 at 11; id. Ex. 39 at 13. When a second complaint arrives-, CATS generates an email to the account holder that includes a letter from Cox explaining the alleged infringement as well as the complete text of the infringement notice Cox received from the copyright owner. Beck Deck ¶ 12; Zabek Deck ¶ 9. When Cox has “rolled up” complaints over the course of a day, CATS will only send the first complaint received that day. Beck Deck ¶ 12 n.9. This process of sending an email warning repeats on the third, fourth, fifth, sixth, and seventh complaints Cox receives for an account within a six-month period. Theodore Deck Ex. 17 at 11..

When Cox receives an eighth notice, it suspends the account and places the account holder in what Cox calls a “soft-walled garden.” Beck Deck ¶9. That means the account holder’s internet access is temporarily limited to a single webpage that displays a warning message. Id.; Za-beck Deck ¶ 9. The account holder can exit the soft-walled garden and self-reactivate service by clicking a link on the webpage. Beck Deck Ex. 3 (“After deleting the files and disabling file sharing, you may click here to reactivate your service.” (emphasis omitted)); Theodore Deck Ex. 17 at 11; id. Ex. 2 at 178-79. On the ninth complaint, the account holder is again sent to the soft-walled garden) Beck Deck ¶ 9; Theodore Deck Ex. 17 at 11.

The tenth complaint results in what Cox calls a “hard-walled garden.” Beck Deck ¶ 9. The account holder is now directed to a webpage with instructions to call Cox customer service. Theodore Deck Ex. 17 at 11. When the account holder' calls Cox, he or she can request reactivation. Id.; id. Ex. 1 at 73. The eleventh complaint is the same. Id. Ex. 17 at 11. The twelfth and thirteenth complaints also place account holders in the hard-walled garden, but now they must speak' to higher-level Cox customer service representatives to request reactivation. Id.; id. Ex. 1 at 79-80. When Cox receives the fourteenth complaint in an abuse cycle, it will review the full account history and consider termination. Id. Ex. 17 at 12. Termination is never automatic, however, and is left to the discretion of Cox employees. Beck Deck ¶ 13. In the “vast majority” of cases, Cox says it is able to address the behavior triggering the infringement notices during the preliminary-steps and never has to reach the “drastic measure” of terminating service. Zabek Decl. ¶¶ 9,14.

D. Cox’s Rejection of Rightscorp’s Notices

Rightscorp includes within its standard infringement notice an offer.of settlement. Specifically, the notices say, “This notice is an offer of settlement. If you click on the link below and .login to the Rightscorp, Inc. automated settlement system, for $10.00 [or $20.00] per infringement, you will receive a legal release from the copyright owner.” Beck Deck Ex. 6. As a policy, Cox does not accept or process infringement notices that contain settlement .offers. Beck Deck ¶ 17-18; Zabek Deck ¶ 31. Cox’s in-house privacy counsel set the policy after concluding that such notices are improper and fall outside the “spirit” of the DMCA. Theodore Deck Ex. 5 at 77-78; Zabek Deck ¶ 31.

.When Cox receives a. complaint with, a settlement offer, it asks the complainant to conform, the notice, and explains that the notice will not be forwarded unless and until it is, amended. Beck Deck ¶ 17; Zabeck Deck ¶ 34. Until a complainant complies, Cox. “blacklists” all complaints received from that complainant by configuring CATS to .auto-delete messages received from that complainant’s email address. Beck Deck ¶ 17.

On March 9, 2011, Cox received its first notice of infringement from Rightscorp. Id. ¶ 19. Cox asked Rightscorp to remove its settlement offers, but Rightscorp declined to do so and continued to send Cox notices. Zabek Deck ¶¶32, 35; id. Ex. 13. On March 14, Cox blacklisted Rightscorp, meaning from that point on, Cox auto-deleted Rightscorp’s emails and never retrieved--the information from the body of those notices. Beck Deck ¶ 20; Theodore Deck Ex. 41 at 10, 12-13. The following October, Cox claims Rightscorp “started inundating” its inbox, sending as many as 24,000 notices in one day. Beck Deck ¶ 21; Zabek Deck ¶ 33. In response, Cox blocked Rightscorp. Blocking messages goes one step beyond blacklisting: now Rightscorp’s notices never even entered Cox’s inbox. Theodore Deck Ex. 2 at 339-40; id. Ex. 41 at 10, 13; Beck Deck ¶21. When a complainant is blacklisted, Cox still has a record of the emails received and deleted. When a complainant is blocked at the server level, there is no record of any message received. Theodore Deck Ex. 41 at 10.

E. Procedural Background

In November 2014, Plaintiffs filed suit against Cox alleging contributory and vicarious copyright infringement for diréet infringements occurring between February 2012 and November 2014. As relief, Plaintiffs seek statutory damages, injunctive relief, fees, and costs. In' its answer, Cox asserted a number of defenses, including, as is relevant here, eligibility for'a liability-limiting safe harbor in the Digital Millennium Copyright Act (“DMCA”). After extensive and contentious discovery, the parties cross-moved for summary judgment. (Dkt. Nos. 305, 310). On October 29, 2015, the Court ordered supplemental briefing on the limited issue of Plaintiff Round Hill Music LP’s standing. (Dkt. No. 501). The following day, the Court heard oral argument. The motions are now fully briefed and ripe for consideration.

II, Analysis

Plaintiffs seek to hold Cox’ liable for the direct infringing activities of individuals using Cox’s internet service. “Although the Copyright Act does not expressly render anyone liable for infringement committed by another, ... doctrines of secondary liability emerged from common law principles and are well established in the law.” Grokster, 545 U.S. at 930, 125 S.Ct. 2764 (internal quotations, alteration, and citations omitted). Plaintiffs invoke two theories of secondary liability: contributory and vicarious infringement. “One infringes con-tributorily by inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Id. (citations omitted).

After setting out . the applicable standard of review, the Court addresses each motion for summary judgment separately, as it must. See Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir.2011).

A. Standard of Review

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists where, after reviewing the record as a whole, a court finds that a reasonable jury could return a verdict for the nonmov-ing party.” McAirlaids, Inc. v. Kimberly Clark Corp., 756 F.3d 307, 310 (4th Cir.2010). “It is an axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. (alteration omitted) (quoting Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam)) (internal quotation marks omitted). Although’the Court “must draw all reasonable inferences in the light most favorable to the nonmoving party, it is ultimately the nonmovant’s burden to persuade [the Court] that there is indeed a dispute of material fact.” CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir.2014). That showing requires “more than a scintilla of evidence — and not merely conclusory allegations or speculation— upon which a jury could properly find in its favor.” Id.

B. Plaintiffs’ Motion for Partial Summary Judgment

Plaintiffs • move for partial summary judgment on two issues. First, Plaintiffs seek a ruling that they own the copyrights at issue. Second, Plaintiffs ask . the Court to find as a matter of law that Cox is not entitled to protection under the. DMCA’s safe harbor provisions. Cox opposes the motion and, asks the Court .to deny the motion -or alternatively enter summary judgment in its favor on both issues.

1. Ownership

To establish a claim of infringement, Plaintiffs must establish their ownership of the 1,421 musical composition copyrights allegedly infringed. See Univ. Furniture Int'l Inc. v. Collezione Europa USA, 618 F.3d 417, 428 (4th Cir.2010). The copyrights at issue can be broken down into four groups: (1) copyrights with certificates of registration that list BMG as the claimant; (2) copyrights with certificates of registration that list a BMG predecessor as the claimant; (3) copyrights that BMG purchased or otherwise acquired from third parties; and (4) copyrights with certificates of registration that list’ Round Hill Music, LLC as the claimant and copyrights that Round Hill Music, LLC purchased or otherwise acquired from third parties. Cox challenges Plaintiffs’ ability to establish ownership as to each category and instead asks the Court to enter summary judgment on the element of ownership in its favor. See Defs.’ Opp’n at 24.

a. Copyrights That List BMG as the Claimant on the Certificate of Registration

For this first category of copyrights, Plaintiffs have produced certificates of registration that list BMG as the claimant. See Briggs Deck Apps. A1-A7, A13 (composition titles and copyright registration numbers); id. Exs. B1-B137, B391, B934 (certificates). The Copyright Act provides that “[i]n any judicial proceedings the certificate of a registration made before or within five years after the first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c). Included in the facts entitled to the presumption of validity is ownership. Univ. Furniture Int’l, Inc., 618 F.3d at 428. Because Plaintiffs produced the certificates they have met their initial burden, and the burden shifts to Cox to “prove-that the claimed copyrights are invalid” Id. (citing M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 434 (4th Cir.1986)).

Cox agrees that the copyright registrations create a rebuttable presumption of ownership, see Defs.’ Opp’n at 25, but it contends that the evidence needed to rébut the presumption and shift the burden back »to Plaintiffs to conclusively establish ownership is not heavy. Indeed, the Fourth Circuit has cautioned that “the Copyright Office’s practice of summarily issuing registrations ... counsels against placing too much weight on registrations as proof of a valid copyright,” and has instructed “reviewing court[s to] assess other relevant indicia of ownership, such as the parties’ intent and the terms of transfer agreements and other documents establishing a chain of title.” Univ. Furniture Int’l, Inc., 618 F.3d at 428; see also 3-12 Nimmer on Copyright § 12.11 (“[Although certain prima facie presumptions are thereby created, the courts are free to examine the underlying facts and to rebut those presumptions, should*the facts so warrant.”).

The question, then, is whether Cox has come forward with sufficient evidence to rebut Plaintiffs’ prima facie case of ownership or create a genuine issue of material fact as to ownership. Cox argues that testimony by BMG’s Vice President of Copyright Administration, Robert Briggs, about BMG’s registration process undermines the presumption of validity. Specifically, Cox claims the testimony establishes that BMG does not check to see if it owns copyrights before it registers them. In response, Plaintiffs argue that Cox greatly mischaracterizes Briggs’s testimony and that the testimony is insufficient to rebut the presumption.

During his deposition, Briggs was asked whether and how' BMG verifies its ownership of a copyright prior to filing a registration application. When asked whether BMG checks to see ’if there is a valid assignment' agreement before filing the registration, Briggs responded, “I can’t say specifically,” and “[generally, this is speculation on my part but I think that they are not checking each song.” Bridges Deck Ex. 19 at 23. He also testified that he did not know whether BMG has or checks its files for complete documentation of ownership following registration. But Briggs also explained that when a “song is delivered to our department, it’s delivered by departments who are working on an understanding that there is an active agreement with that winter or client.” Id. He also said that those active agreements are in place before the songs are delivered and before the applications are filed for registration. And although he testified that it was his understanding that BMG has asked for a correction of a copyright ownership after discovering errors with respect to copyright ownership, Briggs did not know of any specific examples of that happening.

When Briggs’s testimony is read in full, it is not enough to cast doubt on BMG’s ownership. Although “a defendant sued for infringement ‘must simply offer some evidence or proof to dispute or deny the plaintiffs prima facie case of infringement,’” Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d, 1193, 1196 (10th Cir.2005) (quoting Entm’t Res. Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir.1997)), a finding that Briggs’s testimony is sufficient would render the statutory presumption meaningless. “[M]ore than conjecture is required to rebut the presumption,” 3-12 Nimmer on Copyright § 12.11 n.28.18, and conjecture is all that Cox offers from the testimony. Cox has presented no “specific evidence that rebuts the presumption of validity which attaches to a duly issue[d] registration.” Complex Sys., Inc. v. ABN Ambro Bank N.V., 979 F.Supp.2d 456, 470 (S.D.N.Y.2013). Because there is insufficient evidence in the record to rebut the presumption, the Court grants Plaintiffs’ motion for partial summary judgment with respect to the copyrights that list BMG as the claimant on the certificate of registration.

b. Copyrights That List a Predecessor of BMG as the Claimant on the Certifícate of Registration

The next group of copyrights lists a BMG predecessor entity as the claimant on the certificates of registration. See Briggs Decl. Apps. A8-A12, A14-A19, A20-A33, A36 (composition titles and registration numbers); id. Exs. B138-B390, B392-B700, B704, B932-B933 (certificates). Because BMG is not-listed as the claimant, Plaintiffs must produce additional evidence of the chain of title from the claimant listed on the registration to BMG.

To meet their burden, Plaintiffs have produced both the certificates of registration and the merger and acquisition agreements between BMG and the entity (or a d/b/a of the entity)'listed as the claimant on the certificates. See Briggs Decl. Exs. 1-12. Cox makes two general challenges to the chain of title evidence. First, Cox contends that the Court should require the chain‘of title'to éxtend beyond the claimant listed on the certificate to the original author of the work. Second, Cox argues that the merger "and acquisition agreements produced by Plaintiffs are insufficient'to .establish chain of title because they do not specify the - individual works acquired. See Defs.’ Opp’n at 28 (“Without conclusive evidence of which songs it acquired through mergers, BMG cannot prove that it owns the ... works.”). Neither argument is persuasive.

There is no basis for Cox’s argument that the chain of. title must relate back to the author instead of the original claimant. The weight of authority supports finding the latter sufficient. See 4-13 Nimmer on Copyright § 13.01 (“The only evidence required of the plaintiff, in addition to the registration certificate, is evidence of plaintiffs chain of title from the original copyright registrant.” (emphasis added)); see also Montgomery Cty. Ass’n of Realtors, Inc. v. Realty Photo Master Corp., 878 F.Supp. 804, 809-10 (D.Md.1995) (quoting Nimmer for the proposition that the evidence of chain of title is “from the original copyright registrant”), affd, 91 F.3d 132 (4th Cir.1996). Moreover, the only case cited by Cox did not require the plaintiff to establish a chain of title to the author. Cox quotes language from In re Napster, Inc. Copyright Litig., 191 F.Supp.2d 1087, 1101 (N.D.Cal.2002), that “plaintiffs need to produce chain of title from the listed author to themselves.” But the court went on to find that the plaintiffs production of an agreement between the copyright claimant and the plaintiff was sufficient to establish chain of title. See id.

Cox’s second argument is that- Plaintiffs cannot establish ownership because the merger agreements do not list the specific copyrights, acquired. Cox cites no authority for the proposition that the writing used to transfer copyrights must list the specific assets acquired. Moreover, there is an exception to the Copyright Act’s general requirement that the transfer of exclusive rights be made in writing where such a transfer occurs by “operation of law.” 17 U.S.C. § 204(a). In Universal Furniture International, Inc. v. Collezione Europa USA, the Fourth Circuit recognized that “although the Copyright Act generally requires a writing to transfer copyright ownership, it makes exceptions for transfers that occur by ‘operation of law.’ ” 618 F.3d at 429 (quoting 17 U.S.C. § 204(a)). The court went on to note that “certain of our sister circuits have ruled that mergers transfer copyrights ‘by operation of law and obviate the writing requirement.” Id. (citing Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 963 (8th Cir.2005), and Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 721 (9th Cir.1984)); see also Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 41 (1st Cir.2012). If no writing is required to transfer copyright ownership in a merger, Cox cannot be correct that there must bé a list of the specific copyrights acquired. See Design Basics, L.L.C. v. DeShano Cos., Inc., No. 10-14419, 2012 WL 4321313, at *4-5 (E.D.Mich.2012) (finding plaintiff established ownership with certificate of registration and proof of merger). The Court finds Plaintiffs .have. established ownership by .the production of the certificates of registration and the relevant merger and acquisition agreements.

Finally, Cox disputes five individual copyrights in this category. In response, Plaintiffs withdrew their claim of ownership as to one copyright, see Pis.’ Reply at 5 n.3 (withdrawing Exhibit B403), but argue that the remaining challenges are baseless. The Court agrees. Cox first disputes the copyright for “Call of the, Zombie,” see Briggs Decl. Ex. B468, because “Bug Music” (a BMG predecessor) is handwritten under “claimant” on the certificate of registration. Plaintiffs respond that the handwritten name is immaterial. Neither party "cites any authority on this point. The Court need not decide whether a handwritten notation would be" sufficient to undermine a claim of ownership because the unofficial copyright registration available on the public catalog, of which thé Court may take- judicial notice, also lists Bug Music as thé claimant. See Roberts Deck Ex. ’3. Cox next challenges the copyrights for “Hotel,” see Briggs Deck Ex. B568, “Clones,” see id. Ex. B704, and “Co-caína,” see'id: Ex. B587-, on the ground that a BMG predecessor is not listed as a claimant on the registrations. The certificate for “Hotel” lists- Hitco South as a claimant. Hitco South is a d/b/a of BMG predecessor Hitco Music Publishing LLC. Id. ¶ 37. The certificate for “Clones”' lists Trio Music Co Inc., which is a d/b/a of BMG predecessor, Bug Music, Inc. Nee id. ¶36. Plaintiffs concede that the exhibit with the registration for “Cocaína” is “inadvertently missing two pages,” but they ask the Court to take judicial notice of the unofficial copyright registration. Pis. Reply at 5 n.3. The unofficial, registration lists Music of Windswept, see Roberts Deck, Ex. 2, which is a d/b/a of BMG predecessor Windswept Holdings,. LLC. See Briggs Decl. ¶ 38. The Court takes judicial notice of the. public catalog entry.

There is no genuine issue of material fact as to the ownership.of these copyrights. Accordingly, the, Court grants Plaintiffs’ motion with respect to this category of copyrights, with the exception of the withdrawn claim of ownership as to Exhibit B403.

c. Copyrights That BMG Purchased or Otherwise Acquired from Third Parties

The third category consists of copyrights that BMG (or a BMG predecessor) purchased or otherwise acquired from third parties. Plaintiffs have produced the certificates of registration for these works, see Briggs Deck Apps. A35, A37~l()2; id. Exs. B702-B703, B705-B931, and the underlying purchase agreements, see id. Exs. 8-9, 13-105. Additionally, Robert Briggs testified to the acquisitions in his declaration. See Briggs Deck ¶¶ 41-125. Cox challenges the chain of title with respect to the works listed in Appendices A37, A40, A42, A44-A46, A48-A52, A54, A57-A60, A62-A64, A66, A73, A74, A76, -A77, A79, A83-A89, A91, A95-A98, and A10Q-102 to the Briggs declaration. Defs.’ Opp’n at 29-30. Because Cox does not raise a challenge to those works in the appendices not listed, the. Court grants summary judgment to Plaintiffs as to the ownership of those works. .

Cox,first argues that “BMG relies on incomplete co-publication or administration agreements.” Id. at 29. These agreements, Cox argues, “grant BMG various rights to songs in attachments that do not exist” arid thus “do not establish chain of title because they do not identify the objects of a transfer.” Id. As examples, Cox cites two agreements that assign exclusive rights to copyrights to be listed in an attachment but that fail to include the named attachment. Relatedly, ■ Cox argues that BMG “relies on vague agreements that also fail to’ identify the works.” Id. As examples, Cox cites agreements -that give BMG rights “to any and all compositions,” to works acquired after the agreement, and to “all musical compositions, including but not limited to” works listed in a non-existent schedule. Id. These agreements, Cox contends/fail to establish a chain of title because they likewise do not identify which songs were transferred.

Plaintiffs respond that each agreement meets the Copyright Act’s requirement that transfers of ownership by assignment or exclusive license be signed and in writing. See IT U.S.C. § 204(a). There is no requirement, they argue, that each work be identified, and they note that Cox does not cite to a single case or other authority supporting such a proposition. Indeed, courts often say that “a qualifying writing under Section 204(a) need not contain- an elaborate explanation nor any particular ‘magic words,’ but must simply show an agreement to transfer copyright.” Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 600 (4th Cir.2013) (citations omitted) (internal quotation marks omitted); see also Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir.1990) (“It doesn’t have to be the Magna Charta; a one-line pro forma statement will do.”).

Even assuming that to satisfy the chain-of-title requirement Plaintiffs must submit evidence of the specific copyrights covered by each agreement, they have done so via declaration testimony. For instance, Cox cites Exhibit 29, a Music Publishing Administration Agreement between John Legend Music, Inc. and BMG, as an example of an incomplete agreement. The agreement gives BMG exclusive rights to administer the musical compositions listed in Annex 1, but Annex 1 is left blank. In his declaration, Briggs testified that the agreement relates to the twenty-five works listed in Appendix A25. See Briggs Deck ¶¶ 60-61. There is similar testimony relating to each transaction. Cf. Arista Records LLC v. Lime Grp. LLC, No. 06 CV 5936, 2011 WL 1641978, at *4 (S.D.N.Y. Apr. 29, 2011) (finding declaration testimony sufficient to supplement the chain of title). Cox’s mere denial -of these, facts ,is not sufficient to rebut the presumption, of ownership or tc create a genuine issue > of material fact. See id. (“A non-movant ’may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon mere allegations or denials of -the nonmoving .party’s pleading.” (quoting Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532-33 (2d Cir.1993)).

Finally, Cox argues that “BMG relies on a few agreements that allegedly transferred to rights from others [sic] to BMG but'those other parties appear'nowhere in the agreements.” Defs.’ Opp’n at 30 (citing Briggs Deck Exs. A76, A77, A89, A95, A101). It is not entirely clear what Cox is arguing here, but Plaintiffs address each challenged agreement in their reply and identify the parties to the- transfers. Pis.’ Reply at 6-7.

Accordingly, the Court grants summary judgment to Plaintiffs oh the ownership of the copyrights in this category.

d. Copyrights That List Round Hill Music, LLC as the Claimant and Copyrights That Round Hill Music, LLC Purchased or Otherwise Acquired from Third Parties '

The final category, consists of (1) copyrights that list Round Hill Music, LLC as the claimant on the copyright registrations and (2) copyrights that Round Hill Music, LLC purchased or otherwise acquired from third parties. Gillis Deck Apps. Al-A5 (composition titles and registration numbers); id. Exs. C1-C22 (certificates); id. Exs. RH4-RH7 (purchase agreements). Cox argues that Plaintiff Round Hill Music LP (not to be confused with Round Hill Music, LLC) is not the legal or beneficial owner of any exclusive right associated with these copyrights and thus has no standing to sue for infringement under the Copyright.Act.

■ Section 501(b) of the Copyright Act provides that only “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed; while he or she is the owner of it.” 17 U.S.C. § 501(b); see also X-It Prods., L.L.C. v. Walter Kidde Portable Equip., Inc., 155 F.Supp.2d 577, 602 (E.D.Va.2001). Section 106 lists the six exclusive rights available under a copyright. That list is exhaustive. Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1002 (9th Cir.2015). Thus, a plaintiff with the right to take actions that are merely incidental to copyright ownership without any accompanying interest in one of § 106’s rights does not have standing to bring an infringement claim. See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir.2005). Although § 106 is exhaustive, each exclusive right is transferable. Section 101 defines a “transfer of copyright ownership” as “an assignment, ... exclusive license, or any other conveyance ... of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.” 17 U.S.C. § 101. In other words, “either an assignment (which transfers' legal title to the transferee) or an exclusive license (which transfers an exclusive permission to use to the transferee) qualifies as a ‘transfer’ of a right in a copyright for purposes of the Act.” Minden Pictures, Inc., 795 F.3d at 1003. Moreover, each exclusive right is further divisible and “any subdivision of any right specified by section 106, may be transferred ... and owned separately.” 17 U.S.C. § 201(d)(2).

Plaintiffs do not contend that Round Hill Music LP was assigned legal title to any of the copyrights at issue. They claim Round Hill Music LP was given an exclusive license to use each of the copyrights at issue for any and all of the exclusive rights listed in § 106. Thus, it must be the case that Round Hill Music LP not. only “received one or more divisible rights,” but also that its interest in those rights, is exclusive — that is, Round Hill Music LP is “entitled to enforce them.” HyperQuest, Inc. v. N’Site Solutions, Inc., 632 F.3d 377, 383 (7th Cir.2011). To make this determination, the Court looks to “the substance of what was given to the licensee and not the label that the parties put on the agreement.” Warner/Chappell Music, Inc. v. Blue Moon Ventures, No. 3:10-1160, 2011 WL 662691, at *4 (M.D.Tenn. Feb. 14, 2011); see also HyperQuest, Inc., 632 F.3d at 383.

Three agreements are relevant here. The first is the Asset Purchase Agreement that assigned the copyrights from Round Hill Music, LLC, the entity listed on the copyright registrations, to Round Hill Music Royalty Fund LP (the “Fund”). See Gillis Deck Ex. RH1. It is undisputed that the Fund owns legal title to the copyrights.

The second is the Third Amended and Restated Agreement of Limited Partnership of Round Hill Music Royalty Fund LP (the “Fund Agreement”). See id. Ex. RH2. The Fund Agreement created a limited partnership consisting of a general partner — Round Hill Music Royalty Fund GP LP (the “General Partner”) — and. a sole limited partner — Joshua Gruss. The Fund Agreement states that “management of the Partnership shall be vested exclusively in the General Partner ... and the General Partner shall have full control over the business, assets, conduct and affairs of the Partnership.” I'd. at 32. The agreement also contemplates the appointment of a Management Company “to manage the affairs of the. Partnership,” id. at 29, and a Copyright Administrator, defined as “any Person- (including an Affiliate of the General Partner) employed or retained by the Partnership and at the Partnership’s expense, to provide services in connection with -the administration; preparation and processing or any similar service of any copyrights owned. by, or assigned to, the Partnership.” Id. at 6. With respect to the role of Copyright Administrator, the Fund Agreement also states:,

The Partnership will retain the Copyright Administrator, which'may be an Affiliate of the General Partner, to provide the services of administrator of the copyrights owned by or assigned to the Partnership. The Copyright Administrator will be responsible for day-to-day administrative services relating to the Partnership’s portfolio and will be reimbursed for its services.

Id. at 3Í.

The third relevant agreement, executed the same day as the Fund Agreement, is the Management Agreement. See Gillis Deck Ex. RH3. The Management Agreement. was entered into by the Fund, the General Partner, and Plaintiff Round Hill Music LP. Id. at 1. It appointed Round Hill Music LP as the Management Company, and within that role, the Copyright Administrator. See id. (appointing Round Hill Music LP to “provide management or other services, including acting as a Copyright Administrator”). The agreement further states that “[i]n performing the services pursuant to [the]. Agreement, the Manager [Round Hill Music LP] ... shall have the same rights, duties and obligations, and shall observe the same standards of care, as would be applicable to the General Partner if it (and not the Manager) were providing the services performed by the Manager.” Id.

Plaintiffs rely on the combined effect of the Fund Agreement’s grant to the General Partner of “full control over the ... assets” and the Management Agreement’s statement that Round Hill Music LP “shall have the same rights, duties and obligations” as the General Partner. Putting the two together, Plaintiffs claim the Fund gave Round Hill Music LP “the exclusive ownership rights to administer and éxploit the copyrights,” Grass Deel. ¶ 3, including “all of the exclusive rights described in ... § 106.” Pis.’ Supp. Memo. in .Supp. at 4.

The Court disagrees. The plain language of the agreements only gives Round Hill Music LP the “same rights” as the General - Partner — including “full control over the ... assets” — when it is “providing the services performed by the Manager.” Thus, -the language begs the question of what “services” the' Manager, and within that role, the Copyright Administrator, performs with respect to the copyrights. There is little, if any, indication that these “services” performed contemplated the transfer any legally cognizable right in any of the copyrights, much less that such permission was exclusive. The Fund Agreement explains the role of Copyright Administrator as “providing] the services of administrator of copyrights.” Gillis Decl. Ex. RH2 at 31. But the responsibilities listed are “day-to-day administrative services” for which the Copyright Administrator will be reimbursed. Id. Similarly, the agreement defines Copyright Administrator as an entity “providing] services in connection with the administration, preparation and process or any similar service of any copyrights” owned by the Partnership. Id. at 6. While Plaintiffs are correct.that administration agreements can transfer a sufficient ownership interest, there is no other indication aside from the word “administration” that suggests the agreement transferred any interest at all. There is no reference, for example, to any of the actions contemplated by § 106 — for example, the right to reproduce or. distribute. Instead, the word “administration” is surrounded by language that paints Round Hill Music LP’s role as administrative and acting directly on behalf of the Partnership.

The language in the agreements aligns much more closely with Cox’s contention that the Fund merely hired Round Hill Music LP “to provide services related to copyrights it did not own” and that “[t]his employment did not result in any assignment of rights to” Plaintiff. Defs.’ Opp’n at 25. As the Southern District of New York recently noted, “Considering the preeminence of exclusive rights in copyright cases, it is axiomatic that if the ... Agree? ment did not specify that exclusive rights were being transferred, no such rights were in fact transferred.” John Wiley & Sons, Inc. v. DRK Photo, 998 F.Supp.2d 262, 278 (S.D.N.Y.2014).

.Even assuming that the agreements did convey a license to use the copyrights, there is no indication that the license was exclusive. An exclusive license is transferred'when an “individual or entity is given the right to use a copyright” and “the owner promises not to convey that right to anyone outside of- those persons or entities who have an interest in the license.” Warner/Chappell Music, Inc., 2011 WL 662691, at *4 (quoting I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996)). In other words, there is no indication of a “further promise[ ] that the same permission will not be given to others.” Minden Pictures, Inc,, 795 F.3d at 1005 (quoting I JUS., Inc., 74 F.3d at 775) (emphasis added).

Plaintiffs also rely on the declaration of Joshua Grass, the managing member of the Round Hill entities, in which he testified that “[s]ince the Management Agreement was executed, Round Hill LP has acted as the exclusive worldwide administrator of the copyrights and other properties owned by the Partnership. No other individual or entity, including the Partnership, has acted or has the right to act as the administrator of its copyrights, 'including those at issue in this case.” Grass Decl. ¶ 5. As noted above, the Court looks to the substance of the agreements to determine whether standing exists and not the post hoc label placed on the agreements by Plaintiffs. The plain language of the agreements does not support finding a transfer of any exclusive license. Nor is Grass’s declaration particularly helpful, as it does not shed any light on what the role of “exclusive worldwide administrator” entails.

Rather- than attempting to explain what language in the agreements conveyed an exclusive license, Plaintiffs devoted most of them initial briefing to challenging Cox’s ability to make its standing challenge. Plaintiffs cite a line of cases that say an alleged third-party infringer cannot attempt to avoid liability by arguing that an underlying assignment of copyright failed to comply with the Copyright Act’s writing requirement. See 17 U.S.C. § 204(a) (“A transfer of copyright ownership ... is not valid unless an instrument of conveyance ... is in writing and signed by the owner of the rights conveyed----”). The principle arose out of cases where there had been an oral transfer of rights and the question was whether a later' written me-morialization of the transfer was sufficient to comply with the writing requirement. Because the purpose § 204 is to resolve disputes between transferors and transferees, those courts concluded that “it would be anomalous to permit a third party in-fringer to invoke this [writing] provision against the licensee.” Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 36 (2d Cir.1982); see also X-It Prods., 155 F.Supp.2d at 603-04 (citing Eden Toys and collecting cases that support the proposition that “an oral assignment of copyright rights is an effective assignment if the oral assignment is subsequently memorialized in a written document”).

Plaintiffs ask the Court to apply this principle broadly and hold that Cox, as an alleged third-party infringer, cannot challenge the assignment between the Fund and Round Hill Music LP because there is no dispute between them regarding what was transferred. The Court does not believe the principle extends as far as Plaintiffs urge. Cox is not invoking § 204’s wilting requirement or relying on the informality of the transfer to avoid liability. Rather, it is pointing to the language within the written agreements and asking if that language conveyed the type of right necessary to support standing to bring an infringement claim. See Marya v. Warner/Chappell Music, Inc., No. CV13-4460, 131 F.Supp.3d 975, 1001-02, 2015 WL 5568497, at *19 (C.D.Cal. Sept. 22, 2015) (“Eden Toys do[es] not stand for the proposition that so long as an alleged transfer- or and transferee say that a transfer occurred, a third-párty has no choice but to take them at their word. Rather, these cases stand for the proposition that, if there is evidence of a transfer, the informality with which the transfer was conducted does not prevent the transferee from asserting an interest in the copyright.”). Accordingly; Cox’s -.challenge- -is permissible.

Because Round Hill-Music LP does not co-own the copyrights or have an exclusive license for any use of the copyrights, it is without standing to bring this infringement action. Accordingly, the Court finds Round Hill Music LP cannot proceed in this action and its claims for infringement against Cox are dismissed.

2. DMCA Safe-Harbor Defense

BMG also moves for summary judgment on Cox’s entitlement to its DMCA safe-harbor defense. Specifically, BMG contends’ Cox cannot meét the statute’s threshold requirement that internet service providers (“ISPs”) adopt and reasonably implement a repeat infringer policy. After providing an overview of the DMCA’s safe harbor provisions, the Court turns to Cox’s policies and practices.

a. Statutory Framework

Title II of the DMCA, titled the Online Copyright Infringement Liability Limitation Act, was Congress’s answer to the potentially enormous liability, that ISPs faced for the materials being transmitted over their networks. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 27 (2d Cir.2013). To that end, Congress created four safe harbors that protect ISPs from liability for copyright infringement when their involvement is limited to certain activities — transitory ■ digital networking communications, system caching, information residing on systems or networks at the direction of users, and information location tools. See 17 U.S.C. §§ ’ 512'(a)'r(d). Cox invokes the first of ’ thesé safe harbors, § 512(a), which “limits the liability of ISPs when they do nothing more than transmit, route, or provide connections for copyrighted material — that is, when the ISP is a mere conduit for transmission.” In re Charter Commc’ns, Inc., 393 F.3d 771, 775 (8th Cir.2005).

To benefit from any one of the safe harbors, Congress imposed certain threshold requirements on all ISPs, As is relevant here, a service .provider mpst demonstrate that it has “adopted and reasonably implemented, and informed subscribers and account holders of the service provider’s system or network of,--a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” 17 U.S.C. § 512(i)(l)(A). The requirement that service providers implement a repeat-infringer policy is a “fundamental safeguard for copyright owners” and “essential to maintain[ing] the strong incentives for service providers to prevent their services from becoming safe havens or conduits for known repeat copyright infringers.” Capitol Records, Inc. v. MP3tunes, LLC, 821 F.Supp.2d 627, 637 (S.D.N.Y.2011) (internal quotation marks omitted).

The dispute in this case centers on what it means for a service provider to “reasonably implement ]” its policy. The phrase is not defined in the statute. In deciphering its meaning, courts have split the phrase into two separate requirements: (1) whether a service provider implemented its policy; and (2) whether that implementation was reasonable. See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109-10 (9th Cir.2010). Courts have identified several “threshold functions” that must be present in order for a service provider to implement any repeat-infringer policy. Disney Enters., Inc. v. Hotfile Corp., No 11-20427, 2013 WL 6336286, at *21 (S.D.Fla. Sept. 20, 2013). For example, a service provider must have a “working notification system” and “a procedure for dealing with DMCA-compliant notifications,” and the provider must “not actively prevent copyright owners from'collecting information needed to issue such notifications.” CCBill LLC, 488 F.3d at 1109. Additionally, the penalty imposed for repeat infringers (when appropriate circumstances exist) must be termination and not some lesser consequence. See Capital Records, LLC v. Escape Media Grp., Inc., No. 12-cv-6646, 2015 WL 1402049, at *9 (S.D.N.Y. March 25, 2015).

A service provider’s implementation is reasonable if it terminates a repeat in-fringer’s access in appropriate circumstances. See CCBill LLC, 488 F.3d at 1111. This raises the dual questions of when a service provider should consider a subscriber or account holder to be a repeat infringer and when circumstances becorne appropriate for termination. As Professor Nimmer points out,'“repeat in-fringer” could have a number of meanings. On one end of the spectrum, an in-fringer could be “an adjudicated copyright infringer.” See 4-12B Nimmer on Copyright § 12B.10. In the middle may be someone against whom an unadjudicated charge has been made, but the service provider has actual knowledge of, or is aware of facts and circumstances suggesting, infringement. On the other end, an infringer could be someone hgainst whom “an unadjudicated charge of infringement has been preferred.” Id. Although Cox asks the Court to hold that one can be labeled an inf linger only when adjudicated as such, the Court finds no support in caselaw for' that interpretation. Instead, courts have articulated a knowledge standard: “A policy is unreasonable ... if the service provider failed to respond when it had knowledge of the infringement,” CCBill LLC, 488 F.3d at 1113 (emphasis added); see also MPMunes, LLC, 821 F.Supp.2d at 638 (“While knowledge is not an element of copyright infringement, it is relevant to a service provider’s decision whether appropriate circumstances exist to terminate a user’s account.”).

Even if a service provider has knowledge of infringement, howéver, the Act requires termination only in “appropriate circumstances.” The inclusion of this phrase implies that' there are some circumstances under which termination of a repeat infringer may not be appropriate. For example, courts have noted that there , are different degrees of online copyright infringement, from the inadvertent and noncommercial, to the willful and commercial. See H.R. Rep. 105-551, pt..2 at 61 (1998). Another common benchmark, taken from the House and Senate Reports,, is that “those who repeatedly or flagrantly abuse their access to the-Internet'through disrespect for intellectual property rights of others should know that there is a realistic threat of losing that- access.” Id. Thus, appropriate circumstances clearly cover account holders who repeatedly or flagrantly infringe copyright, particularly infringement- of a willful and commercial nature. See Capitol Records, LLC v. Vimeo, LLC, 972 F.Supp.2d 500, 514 (S.D.N.Y.2013). Equally clear is that this standard cannot be'applied iff such a way as to impose an affirmative duty on service providers to monitor for infringement. See 17 U.S.C. § 512(m)(l) (“Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on ... a service’ provider monitoring its service or affirmatively seeking facts indicating infringing activity ,...,.”); CCBill LLC, 48,8 F.3d at 1111 (“To identify and terminate repeat infringers, a service provider need not affirmatively police its users for evidence- of repeat infringement.”).

In sum, the Court finds § 512(i) covers, “at a minimum, instances where a service provider is given sufficient evidence to create actual knowledge of blatant, repeat infringement by particular users, particularly infringement of a willful and commercial nature,” Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1177 (C.D.Cal.2002); Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090, 1104 (W.D.Wash.2004) (“Because it does not have an affirmative duty to police its users, failure to properly implement an infringement policy requires a showing of instances where a service provider fails to terminate a user even though it has sufficient evidence to create actual knowledge of that user’s blatant, repeat. infringement of -a willful and commercial nature.”).

b. Application .

BMG identifies three reasons why Cox did not reasonably implement its repeat infringer policy. First, BMG says Cox cannot be said to be implementing its policy if it refuses to accept Rightscorp’s infringement notices merely because they contain settlement offers. And even beyond Cox’s blanket refusal to forward those notices to its account holders, BMG argues it is also unreasonable that Cox makes no effort to record the other information contained in the notices, such as the date and. time of the infringing activity and the account holder’s IP address. Second, BMG argues that with millions of subscribers, Cox’s use of a “hard limit” on the number of infringement notices it will receive in a twenty-four-hour period is additional evidence' of unreasonableness. Third, BMG argues that Cox does not terminate access of repeat infringers under appropriate circumstances.

The Court finds this last'ground sufficient, standing alone, to bar Cox from invoking the DMCA’s protection. Accordingly, there is no need to decide whether Cox’s refusal to receive notices with settlement agreements or its “hard limit” on the number of notices received might also render Cox ineligible for a safe harbor. In assessing Cox’s terminatiori of repeat in-fringers, the Court divides Cox’s practices into two time periods: before the fall of 2012 and after.

i. Cox Did Not Implement a ■Repeat Infringer Policy Before Fall 2012

■ The record conclusively establishes that before the fall of 2012 Cox did not implement its repeat infringer policy. Instead, Cox publicly purported to comply with its policy, while privately disparaging and intentionally circumventing the DMCA’s requirements. Cox employees followed an unwritten policy put in place by senior members of Cox’s abuse group by which accounts used to repeatedly infringe copyrights'would be nominally terminated, only to be reactivated upon request. Once these accounts were reactivated, customers were given clean slates, meaning the next notice of infringement Cox received linked to those accounts would be considered the first in Cox’s graduate response procedure.

Numerous emails in the record, portions of which are reproduced below, support these conclusions. Even viewed in the light most favorable to Cox, the Court finds the contents of the emails cannot be explained away. Cox’s attempts to recast the emails are unavailing. Nor can they be pinned on low level employees whose views had no real significance. The name that appears again and again on these emails is Jason Zabek, Cox’s Manager of Customer Abuse Operations.

In 2009, Zabek sent an email titled, “DMCA Terminations,” to the abuse group that said:

As we move forward in this challenging time we want to hold on to every subscriber we can. With this in mind if a customer is terminated for DMCA, you are able to reactivate them after you give them a stern warning about violating our AUP and the DMCA. We must still terminate in order for us to be in compliance with safe harbor but once termination is complete, we have fulfilled our obligation. After you reactivate them the DMCA ‘counter’ restarts; The procedure restarts with the sending of warning letters, just like a first offense. This is to be an unwritten semi-policy ... We do not talk about it or give, the subscriber any indication that reactivating them is normal. Use your best judgment and remember to do what is right for our company and subscribers. ... This only pertains tp DMCA violations. It does not pertain to spammers, hackers, etc.-

Theodore Deck Ex. 18.

In a January 2010 email exchange, Za-bek was asked by an employee what to do in the following scenario:

Customer had several -email warnings, followed by suspensions up to TOC [technical operations center] and was terminated December 8th. Voicemail call back on January 7th shows I explained to the account holder [redacted] they could request'review in 6 months for possible reactivation. ICOMS notes shows [redacted] called about the bill January 11 and got reinstated. We already have a DMCA complaint —

Id. Ex. 19.-In other words, this customer had progressed through Cox’s graduated response procedure and Cox had ultimately determined appropriate circumstances existed to terminate this customer for- six months. One month into the termination, the customer was reactivated and soon thereafter, Cox received another notice of infringement tied to the account.

This was Zabek’s response:

This is fine. If asked, I would'have allowed them back on. We have been turning customers back on who have been terminated for DMCA complaints. As long as our process of warnings, sus-pensión], then termination is followed, we can turn the customer back on and start the DMCA count over. During this time, as we try to keep customers and gain more RGU’s [revenue generating units] it is important to try and balance the needs of the company with the protection of the network. DMCA does not hurt the network like DOS attack, spam or hacking. It is not something we advertise however.

Id.

In a. series of emails in June of that year, a customer service representative asked whether she needed the abuse group’s “okay” to reactivate an account after “a customer is terminated for the first time.” Id. Ex. 20. Zabek responded: “If it is for DMCA you can go ahead and reactivate. Any other issues (hacking, spam, etc.) give[] us a heads up and we can all look at it together.” Id. In the same chain, another Cox employee wrote: “[I]n 99% of the cases we are going to turn the customer back on. ... [I]n that 1% of the cases, the customer will not reactivate at their own discretion.” Id. ■

In August, a representative sent the abuse group an email to confirm that, after a customer is terminated and then reactivated, the next complaint Cox received “is to be treated as a brand new complaint” and the customer is to be “‘given a clean slate.” Id. Ex. 21. Zabek responded:

Internal info only. Do not forward. After termination of DMCA,- if you do suspend someone for another DMCA violation, you are not wrong. However, if the customer has a cox.net email we would like to start the warning cycle over,-hold for more, etc. A clean slate if you will. This way, we can collect a few extra weeks of payments for their account. ;-) Once the customer has been terminated for DMCA, we have fulfilled the obligation of the DMCA safe harbor and can start over. ... We have some leeway here. But know that once a termination happens, we have fulfilled “safe harbor.” These are not in our procedures as we do not make this information publicly known.

Id.-, see also id. Ex. 2 at 201, 222 (confirming that the process would begin anew following reactivation).

In March 2011, a customer servic