{"id":79200,"date":"2024-09-18T09:00:43","date_gmt":"2024-09-18T09:00:43","guid":{"rendered":"https:\/\/www.cryptocabaret.com\/?p=79200"},"modified":"2024-09-18T09:00:43","modified_gmt":"2024-09-18T09:00:43","slug":"isps-back-coxs-supreme-court-petition-to-counter-extortionate-piracy-liability-pressure","status":"publish","type":"post","link":"https:\/\/www.cryptocabaret.com\/?p=79200","title":{"rendered":"ISPs Back Cox\u2019s Supreme Court Petition to Counter \u201cExtortionate\u201d Piracy Liability Pressure"},"content":{"rendered":"

\"supremecourt\"In August, Cox Communications filed a petition at the U.S. Supreme Court<\/a>, requesting a review of a Fourth Circuit ruling that held the company liable for pirating subscribers. <\/p>\n

The Internet provider ultimately challenges a $1 billion jury verdict<\/a> in favor of major record labels, including Sony and Universal, arguing that it has far-reaching implications for Internet providers and the broader American public.<\/p>\n

Cox wrote that, in its view, the lower court\u2019s ruling stretches service provider liability too far and creates the \u201cmost draconian secondary-liability regime\u201d in the country. As a result, ISPs find themselves \u2018forced\u2019 to terminate subscribers, who may have done little wrong. <\/p>\n

Two Questions<\/h2>\n

This case is about who is responsible for Internet piracy. Is it only the users who actually share pirated material, or can ISPs be held responsible too, when they fail to properly respond to \u201crepeat infringers\u201d, as the DMCA prescribes?<\/p>\n

The Fourth Circuit concluded that Cox \u201cmaterially contributed\u201d to the infringements of its subscribers because the company knew about this activity and didn\u2019t terminate their accounts.<\/p>\n

That leads Cox to present the following question to the Supreme Court:<\/p>\n

\u201cDid the Fourth Circuit err in holding that a service provider can be held liable [\u2026] merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?\u201d<\/em><\/p>\n

The second question is indirectly related to the damages award. The jury awarded the maximum statutory damages of $150,000 per work, which is typically reserved for \u201cwillful\u201d infringement. Cox questions whether simply knowing about subscribers\u2019 copyright infringements is willful.<\/p>\n

\u201cDid the Fourth Circuit err in holding that mere knowledge of another\u2019s direct infringement suffices to find willfulness under 17 U.S.C. \u00a7 504(c)?\u201d the petition reads.<\/em><\/p>\n

ISPs Back Cox<\/h2>\n

This case doesn\u2019t only affect Cox, it has implications for all Internet providers. Yesterday, several other ISPs including Verizon, Frontier, Altice, and Lumen Technologies, filed an amicus curiae<\/a> brief at the Supreme Court, backing the petition. <\/p>\n

Several of these providers are involved in similar lawsuits, with potential damages running in the hundreds of millions, if not billions of dollars. This \u2018threat\u2019 created by the lower court\u2019s ruling creates \u201cextortionate pressure\u201d and invites mass terminations, they argue. <\/p>\n

\u201cThe decision [\u2026] imperils the future of the internet. It exposes internet service providers to massive liability if they do not carry out mass internet evictions.<\/p>\n

\u201cThe extortionate pressure such lawsuits exert is acute. And the mass terminations they encourage would harm innocent people by depriving households, schools, hospitals, and businesses of internet access.\u201d<\/p>\n<\/p>\n

\"extortionate\"<\/center><\/p>\n

The ISPs note that, as things stand, they are required to terminate connections of alleged pirates that may also be used by innocent others. This is all based on third-party accusations that, in large part, rely on automated processes which are not error free. <\/p>\n

Twitter<\/h2>\n

The amicus brief stresses that the Fourth Circuit\u2019s decision to hold Cox liable, directly contradicts the recent Supreme Court ruling in Twitter vs Taamneh<\/a><\/em>. In that case, the Supreme Court rejected the claim that Twitter aided-and-abetted terrorist activity because it didn\u2019t \u201cconsciously and culpably\u201d participate in the illegal activity.<\/p>\n

According to the ISPs\u2019 brief, the same logic applies in this case. Cox was held liable for the piracy activities of subscribers, without taking any culpable action. <\/p>\n

A service provider\u2019s failure to stop bad actors from misusing its platform does not qualify as culpable action. To emphasize this point, the brief cites the Supreme Court\u2019s own words.<\/p>\n

\u201cUnder the common law, this Court explained, \u2018communication providing services\u2019 have no \u2018duty\u2019 \u2018to terminate customers after discovering that the customers were using the service for illicit ends\u2019. <\/p>\n

\u201cFor that reason, the Court held that the social-media companies\u2019 continued provision of routine communication service to terrorists was \u2018mere passive nonfeasance\u2019 that did not amount to culpable aid.\u201d<\/p>\n

In conclusion, the ISPs urge the Supreme Court to grant Cox\u2019s petition and overturn the Fourth Circuit\u2019s decision, emphasizing the need to protect ISPs from excessive liability and safeguard the internet\u2019s future.<\/p>\n

Law Professor Chimes In<\/h2>\n

It\u2019s no surprise that these ISPs are siding with Cox, as they have a direct interest in the outcome of the case. However, they are not the only amici; Professor Alfred Yen from Boston College Law School also wrote in. <\/p>\n

Professor Yen urges the Supreme Court to grant certiorari<\/a> (Cox\u2019s appeal) and rectify what he perceives as a flawed interpretation of contributory copyright infringement law by the Fourth Circuit. His only interest in this case is the \u201corderly and logical development of the law for the benefit of society,\u201d his brief explains.<\/p>\n

The brief also focuses on culpable intent. The Fourth Circuit concluded that Cox was \u2018culpable\u2019 because it provided internet service to subscribers, while knowing that those subscribers could likely continue to pirate. <\/p>\n

The court specifically stated that \u201csupplying a product with knowledge that the recipient will use it to infringe is exactly the sort of culpable conduct sufficient for contributory infringement.\u201d<\/p>\n

Professor Yen believes that this is wrong, as Cox could not conclude with \u201csubstantial certainty\u201d that infringers would continue. Especially since Cox also operated a graduated response program, aimed at stopping piracy on its network.<\/p>\n

Electric Shock<\/h2>\n

In addition, the brief notes that \u2018certainty of injury\u2019 does not always imply intent. There are many other services that are guaranteed to lead to injury, where intent is not in question. <\/p>\n

\u201cFor example, the operator of a railroad knows with substantial certainty that this activity will eventually cause injury to someone. The same would be true for the electric company because eventually, someone will suffer an electric shock,\u201d Professor Yen writes. <\/p>\n

While the Fourth Circuit\u2019s conclusion that Cox is liable might seem superficially attractive, the professor warns of far-reaching and dangerous consequences if it holds up. <\/p>\n

Under the same logic, many other companies could be drawn into liability battles because they provide services to individuals who may use that service to infringe, ranging from electricity providers to ink sellers. <\/p>\n

\u201cThe Fourth Circuit\u2019s logic makes all of these service providers culpably responsible for infringement as long as they receive the same kinds of notice sent to Petitioners and continue providing service,\u201d Professor Yen writes. <\/p>\n

Moving Forward<\/h2>\n

The Supreme Court took both briefs under consideration, to see if these will eventually factor into the decision to hear the case or not. <\/p>\n

The respondents in this case, a group of major record labels including Sony and Universal, were required to file their planned opposition brief yesterday. However, they were given a month\u2019s extension previously, so that will come in later. <\/p>\n

\u2014<\/em><\/p>\n

A copy of the amicus brief filed by the Internet providers is available here (pdf)<\/a>. A copy of Professor Alfred Yen\u2019s brief can be found here (pdf)<\/a><\/p>\n

From: TF<\/a>, for the latest news on copyright battles, piracy and more.<\/p>\n

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In August, Cox Communications filed a petition at the U.S. Supreme Court, requesting a review of a Fourth Circuit ruling that held the company liable for pirating subscribers. The Internet provider ultimately challenges a $1 billion jury verdict in favor of major record labels, including Sony and Universal, arguing that it has far-reaching implications for […]<\/p>\n","protected":false},"author":2,"featured_media":79201,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[308],"tags":[],"class_list":["post-79200","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-torrent"],"_links":{"self":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/posts\/79200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=79200"}],"version-history":[{"count":0,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/posts\/79200\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/media\/79201"}],"wp:attachment":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=79200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=79200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=79200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}