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In 2019, Internet provider Cox Communications lost its legal battle against a group of dozens of record labels, including Sony and Universal.<\/p>\nIn 2019, Internet provider Cox Communications lost its legal battle against a group of dozens of record labels, including Sony and Universal.<\/p>\n
Following a two-week trial, a Virginia jury held Cox liable for its pirating subscribers. The ISP failed to disconnect repeat infringers and was ordered to pay $1 billion in damages<\/a>.<\/p>\n This case is one of many<\/a>. Other ISPs have been accused of being similarly lax in their stance against alleged piracy. Rightsholders believe that ISPs are motivated by profit, while ISPs typically argue that they shouldn\u2019t be held liable for the alleged wrongdoing of subscribers. <\/p>\n Cox challenged the verdict through several routes<\/a> and last August filed a petition at the U.S. Supreme Court<\/a> asking it to hear the case. The Internet provider stressed that the current verdict \u2018jeopardizes\u2019 internet access for all Americans. <\/p>\n Around the same time, the music companies filed their own petition<\/a>, hoping to strengthen the verdict at the Supreme Court. Specifically, the record labels argued that the ISP should also be held liable for vicarious copyright infringement.<\/p>\n Both petitions essentially boil down to questions on liability. Are ISPs liable for copyright infringement if they don\u2019t disconnect subscribers accused of copyright infringement? And can ISPs be held liable for infringing subscribers, even if they don\u2019t directly profit from their activities?<\/p>\n Last November, the Supreme Court suggested that it is indeed interested in the questions. Before deciding, however, the U.S. Solicitor General was invited to share the Government\u2019s view on the matter. <\/p>\n The Solicitor General is a high-ranking official in the U.S. Department of Justice who serves as the federal government\u2019s primary lawyer before the Supreme Court. Needless to say, their input weighs strongly for the Supreme Court\u2019s decision whether to accept these petitions or not. <\/p>\n Yesterday, the Solicitor General submitted its amicus brief in this matter, clearly siding with the Internet provider. <\/p>\n The Solicitor General argues that the Fourth Circuit\u2019s decision, which held Cox liable for contributory infringement, \u201cdeparts from this Court\u2019s contributory-infringement precedents\u201d and is in \u201csubstantial tension\u201d with the Supreme Court\u2019s recent analysis of secondary liability in Twitter v. Taamneh<\/a>. <\/p>\n \u201cThe Taamneh Court\u2019s reasoning reinforces the conclusion that imposing liability on Cox for copyright infringement committed by its users, based on Cox\u2019s failure to terminate service to IP addresses associated with infringement, is incompatible with traditional common-law limitations on secondary liability,\u201d the brief reads.<\/p>\n The U.S. also cites the Sony and Grokster cases, which make clear that contributory liability for copyright infringement requires more than knowing about pirating activity. Instead, it requires \u201cculpable intent\u201d to cause copyright infringement.<\/p>\n \u201cIf Cox had explicitly or implicitly marketed its service as being particularly useful for infringers, or if it had encouraged subscribers to use Cox\u2019s internet service to infringe, liability might be appropriate,\u201d the Solicitor General writes. <\/p>\n According to the view of the U.S. Government, an ISP is not automatically liable for copyright infringement if it fails to terminate subscribers after receiving copyright infringement notices. This is a strong statement that targets the central issue in many similar lawsuits in U.S. courts.<\/p>\n<\/p>\n The amicus brief goes on to state that the current verdict of the Court of Appeals can have broad implications for ISPs and their subscribers. <\/p>\n Cox previously argued that, based on this precedent, ISPs find themselves \u2018forced\u2019 to terminate subscribers who may have done little wrong. The U.S. Solicitor General acknowledges this potential threat.<\/p>\n If copyright infringement notices from third parties can trigger liability, Internet providers may take more drastic action to avoid legal trouble.<\/p>\n \u201cGiven the breadth of that liability, the decision below might encourage providers to avoid substantial monetary liability by terminating subscribers after receiving a single notice of alleged infringement,\u201d the Solicitor General writes. <\/p>\n \u201cLosing internet access is a serious consequence, as the internet has become an essential feature of modern life. And because a single internet connection might be used by an entire family\u2014or, in the case of coffee shops, hospitals, universities, and the like, by hundreds of downstream users\u2014 the decision below could cause numerous non-infringing users to lose their internet access.\u201d<\/p>\n Aside from the liability question, the brief also criticizes the Fourth Circuit\u2019s finding of \u201cwillfulness\u201d against Cox, which led to the enhanced statutory damages. <\/p>\n The Solicitor General argues that the jury instruction was \u201cerroneous\u201d because it allowed a finding of willfulness based on the notion that Cox knew its subscribers\u2019 actions were unlawful, even though Cox believed its own response was lawful. <\/p>\n The Solicitor General notes that \u201cwillfulness\u201d generally requires knowledge or reckless disregard that the defendant\u2019s own conduct was unlawful. Simply knowing about third-party infringements should not be sufficient.<\/p>\n This broad interpretation would essentially undermine the Copyright Act\u2019s two-tiered damages scheme, which reserves higher damages for willful copyright infringement than for non-willful infringement. <\/p>\n While the U.S. supports Cox\u2019s petition, it has asked the Supreme Court to deny a related writ from the opposing music labels, who argue that Cox should also be held liable for vicarious copyright infringement.<\/p>\n Defendants can be held vicariously liable if they had the right and ability to control the infringing activities and a direct financial interest in those activities. According to the Solicitor General, the lower court correctly concluded that is not the case here.<\/p>\n \u201cThere was no evidence that Cox would be forced to collect a lower fee if the users of its internet service ceased to infringe; that subscribers were drawn to Cox\u2019s internet service because of the ability to engage in copyright infringement using that service; or that Cox had used the opportunity for customers to infringe to lend credibility to the service it offered,\u201d the brief notes. <\/p>\n All in all, it\u2019s clear that the U.S. Solicitor General, and thus the U.S. Department of Justice, supports Cox\u2019s attempt to overturn the piracy liability verdict. While the Supreme Court has yet to formally decide whether it will take on the case, the brief suggests the chance is now significantly higher. <\/p>\n<\/p>\n While Cox will be pleased to see the supportive brief, there are no guarantees that the Supreme Court will agree with the U.S. Solicitor General, should it ultimately decide to take on the case. <\/p>\n \u2014<\/p>\n Update:<\/em><\/strong> After publication, Cox spokesperson Todd Smith sent us the following statement.<\/p>\n \u201cWe are pleased the Solicitor General agrees the Supreme Court should review this significant copyright case that could jeopardize internet access for all Americans and fundamentally change how internet service providers manage their networks. Cox knows how critical reliable broadband services are for the communities we serve.\u201d<\/p>\n \u2014<\/em><\/p>\n A copy of the U.S. Solicitor General\u2019s Amicus Curiae brief for the United States is available here (pdf)<\/a>.<\/p>\n From: TF<\/a>, for the latest news on copyright battles, piracy and more.<\/p>\nLandmark Piracy Battle<\/h2>\n
U.S. Backs Cox\u2019s Petition<\/h2>\n
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<\/center> <\/p>\nInnocent Subscribers at Risk<\/h2>\n
No Willful Infringement<\/h2>\n
Music Companies\u2019 Writ Should be Denied<\/h2>\n
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