Read TFA closer. They do have a repeat offender policy.
I never said they didn't.
(I'm glad it got someone to read the article. teehee!)
The article shows Cox's stance, which is that they have a repeat offender a policy. The judge, for reasons we don't know yet, thinks that their policy is inconsistent. For all we know, Cox has no actual policy, and merely drafted up something right now on the fly, then used previous cases of banning users to support the claim that they had a policy all along. Cox claims that their policy it is not inconsistent, it is discretionary. Is their policy sufficient to meet the criteria for a repeat offender policy as described in the DMCA? *shrugs* We don't know. The judge will decide that. DMCA itself isn't super clear on the topic, which is why I looked it up and linked to the EFF's opinion on those policies.
IMHO, Cox is right. Those copyright trolls send a gzillion notices with little to no supporting evidence. Neither the ISPs, nor the individuals, should be obligated to respond to them. The trolls should have their errant and unsupported DMCA claims discarded, and they should be held liable for damages. Hopefully that is what will happen here. Even if Cox's repeat offender policy was not sufficient, it does not make the DMCA claims valid. But if Cox didn't follow the DMCA rules than it puts a wrinkle in things and makes this a bad case and increases the chance for the trolls to succeed. This is a lesson to other ISPs: Get your repeat offender policy in alignment with the law, or fear losing your safe harbor status. That would be a huge ball of suck.
My post was not a criticism or a defense of Cox. It was to point out that there is a lot more nuance than the overzealous Slashdot summary would have us believe. The summary implies that the judge threw-out safe harbor for arbitrary reasons. The article indicates otherwise.