American internet service provider Cox Communications has made another filing with the US Supreme Court, which will decide later this month whether to review the ISP’s billion dollar legal battle with the major record companies.
Cox continues to ramp up the drama in a bid to persuade the top US court that this is a case it needs to review. The major labels do not dispute, it writes, that rulings made in the lower courts in this case have “installed a copyright regime that requires ISPs to reflexively terminate the internet access of entire households and businesses upon a couple accusations of infringement”.
Under the precedent set, it continues, “innocent users could lose their internet lifelines merely because a guest downloaded a couple of songs”. To avoid liability for copyright infringement “ISPs must sever connections to hospitals and universities” where a few people have illegally shared music files.
The major labels, they then say, “express no compunction about any of this – they say the concern is ‘overblown’”. Yet, Cox adds, “in this case, they won $1 billion on the theory that Cox should have cut 57,000 internet connections after a second infringement accusation”. They also “depict Cox as especially culpable”, even though they have filed very similar lawsuits against numerous other ISPs.
“This is possible only because of the widespread confusion about how this court’s decades-old contributory-liability rulings map onto the modern internet”, Cox concludes.
In order to stop widespread internet disconnections, of accounts where someone is accused of illegally sharing a few music files, the Supreme Court “must resolve the confusion – and hold that ISPs are not required to police everything that happens online – before it is too late”.
The billion dollar judgement
Cox Communications was sued by all three of the majors for not doing enough to stop its customers from illegally accessing and sharing music files. By failing to deal with known repeat infringers among its customer base, the majors argued, Cox did not qualify for the safe harbour protection provided by US copyright law that stops internet companies being liable for the infringement of their users.
Therefore, the majors said, Cox should be held liable for both ‘contributory infringement’ – for contributing to the copyright infringement of its users – and ‘vicarious infringement’ – for profiting from that copyright infringing conduct. At first instance, in 2019, a jury sided with the majors and awarded them a neat billion dollars in damages.
Cox took the matter to appeal. The appeals court upheld the contributory infringement ruling, but said that Cox was not liable for vicarious infringement, forcing the damages bill to be recalculated. Both sides now want the Supreme Court to intervene. Cox wants the top court to overturn the contributory infringement ruling. The majors want it to reinstate the vicarious infringement ruling.
Both sides filed their initial papers with the Supreme Court in August, and since then there have been responses, and responses to the responses. Cox responded to the majors’ bid to get the vicarious infringement element of the original judgement reinstated last month, stating that – in that bid – the music companies “want to make a terrible situation even worse”.
What is contributory infringement?
The latest filing returns to the contributory infringement part of the dispute. After the dramatic “hospitals will lose their internet” opener, much of the rest of the filing discusses past rulings on contributory infringement in both the Supreme Court and different appeals courts around the US.
In particular, the Grokster ruling in the Supreme Court in 2005, another music industry case that was a landmark moment in the battle against illegal file-sharing in the 2000s.
In Grokster, the file-sharing company was liable for contributory infringement in part because it induced the infringing conduct by suggesting to its users that the software be used to access unlicensed music. Cox argues that failing to disconnect accused infringers is not the same as inducing people to infringe.
Cox also reckons that the much more recent Supreme Court ruling, in the Twitter v Taamneh case, is relevant. That was focused on whether social media companies aided and abetted ISIS by allowing its members to use their platforms for “recruiting, fundraising and spreading their propaganda”.
The court ruled that the social media firms were not liable in that case, which – Cox argues – sets a principle around the secondary liability of internet companies that should be applied in this case too.
That argument has already been rejected in a US appeals court in another legal battle between the majors and an ISP – in that case Grande Communications. Although that doesn’t stop Cox restating that argument in its latest filing.
Either way, Twitter v Taamneh was not a copyright case and, in terms of getting the Supreme Court to review this dispute, that’s important. Cox reckons that its dispute with the majors requires Supreme Court scrutiny because of the potential precedent that will be set around contributory copyright infringement.
Which brings us back to the drama. Clarity is needed, Cox concludes, otherwise “ISPs will have to cut entire homes and businesses off the internet any time the music industry accuses some anonymous user of downloading a song or two”.