Photo Credit: Cox Enterprises
Holding ISPs liable for users’ alleged copyright infringement will ultimately cut many innocent individuals off from the internet – at least according to Cox Communications, which has submitted an opening brief to the Supreme Court.
That opening brief made its way to the nation’s highest court today, representing the latest development in a marathon legal battle between Cox and the major record labels. We’ve covered the courtroom confrontation every step of the way – including when a jury ordered the ISP to pay an astonishing $1 billion over half a decade ago.
Multiple years and twists later, an appellate court in February 2024 overturned the gargantuan verdict, ordering a new trial on damages. But Cox sought and ultimately obtained a Supreme Court review of the case as well as the central question of ISPs’ precise liability for users’ alleged infringement.
Moreover, amid similar-but-separate copyright suits against internet providers, this high-stakes question will prove important on several levels.
Getting down to it, then, Cox in its opening brief emphasized an alleged lack of infringement involvement and far-reaching steps allegedly taken to curb customers’ violations.
Chief among the steps is “a highly effective anti-infringement program” tailored for the approximately 1% of total Cox-covered homes and businesses accused of infringement in the action. Long story short, the ISP maintains that a combination of email warnings, temporary suspensions, and more means only 2% of this group ultimately continued infringing.
Regarding its limited embrace of outright service terminations for these alleged repeat infringers, Cox pointed in part to the prevalence of multi-user accounts.
“Often, termination would have been unconscionable,” the ISP penned. “For example, all but one of the 49 accounts most frequently accused of infringement were entities like regional ISPs, university housing, military barracks, and multi-unit dwellings, so that termination would have meant throwing innocent users off the internet en masse.”
In any event, “Cox’s system reduced piracy on its network to rates considerably lower than the internet average,” the company continued before stressing the perceived pitfalls of compelling ISPs to terminate accounts at once to avoid infringement liability.
“Under the Fourth Circuit’s theory, Cox could avoid liability only by throwing entire homes, coffee shops, hotels, military barracks, and regional ISPs off of the internet,” the entity proceeded. “Innocent users and infringers alike would be severed from service that is integral to nearly every aspect of modern life.”
Furthermore, “Cox has no way to guarantee users obey their contractual commitment to abstain from wrongdoing,” according to the legal text. “Just as a gun manufacturer cannot guarantee guns do not find their way to drug cartels. Just as an electric company cannot ensure its wattage does not power an infringer or a cyberattack. Just as a landlord cannot guarantee its tenants do not sell contraband.”
Following the position to its logical conclusion, holding Cox liable for the alleged infringement in question “would mean that ISPs can be held responsible for literally everything bad that happens on the internet—bullying, harassment, libel, racketeering, unlawful gun sales … everything.”
And that reality, in turn, would fuel “dangerous and drastic consequences,” per Cox, with ISPs having “no choice but to err in favor of termination rather than face the crapshoot of trial by a jury deciding what was ‘reasonable.’”
“Grandma will be thrown off the internet because Junior illegally downloaded a few songs on a visit,” Cox went ahead and drove home. “An entire barracks or corporation will lose internet because a couple of residents or visitors infringed. … [T]hat is the only way Cox could have avoided liability for the dozen such ISPs accused in this case.”
This is, of course, just a summary of Cox’s brief, which also explored, among many other things, purported issues with the jury’s instructions and some of the infringement notices.
(As for Cox employees’ internal communications venting about the DMCA, the “unfortunate emails do not reflect Cox’s views as a company” and “do not satisfy the culpable conduct necessary for secondary liability,” to name another example.)
From here, it’ll certainly be worth keeping an eye out for a retort from the majors, which are pushing to reinstate the mentioned $1 billion verdict. As for the exact next step, amicus briefs are due next Friday, September 5th.
