ISP in Supreme Court: We shouldn't have to disconnect users accused of piracy

A major internet service provider wants the Supreme Court to rule that ISPs do not have to cut off broadband users accused of piracy. Cable provider Cox Communications, which is seeking to overturn a ruling in a copyright infringement case brought by Sony, asked the Supreme Court to take up the case yesterday.

Cox said in a press release that a recent appeals court ruling “would force ISPs to shut down Internet service to homes or businesses based on unproven allegations of infringing activity. It would also put them in a position where they would have to monitor their networks – contrary to what customers expect… Shutting down Internet service would not only impact the individual accused of illegally downloading content, but would shut out an entire household from the Internet.”

The case began in 2018, when Sony and other music copyright holders sued Cox, claiming the company did not adequately combat piracy on its network and failed to block repeat offenders. A jury in the U.S. District Court for the Eastern District of Virginia ruled in December 2019 that Cox must pay the major record labels $1 billion in damages.

Digital human rights groups such as the Electronic Frontier Foundation (EFF) opposed the ruling, arguing that it “would cause innocent and vulnerable users to lose their essential internet access.” The case went to the U.S. Court of Appeals for the 4th Circuit, which in February 2024 overturned the $1 billion damages award but upheld one of the most important copyright infringement verdicts.

Specifically, the appeals court affirmed the jury's finding that Cox was guilty of willful aiding and abetting copyright infringement and reversed a verdict of culpable infringement. The verdict of culpable infringement was reversed “because Cox did not profit from its subscribers' copyright infringements.”

Cox wants judgment on indirect copyright infringement

On the allegation of aiding and abetting copyright infringement, the appeals court judges said their hands were tied in part because Cox failed to present an important argument to the district court. Proving “aid and abetting of copyright infringement by an Internet service provider based on the direct copyright infringement of its subscribers” could be established by showing “willful blindness,” the court said.

“Cox did not argue in the district court, as it now does on appeal, that notices of prior copyright infringement did not establish that Cox knew that the same subscriber would almost certainly infringe again…Because Cox did not raise this argument in the district court, it is forfeited for appeal,” the appeals court said. In the district court, Cox argued that the copyright infringement notices sent to the ISP were too vague.

The Supreme Court ruled in MGM vs Groksterfrom 2005: “Anyone who distributes a device with the aim of promoting its use to infringe copyright, which is expressed by clear statements or other positive steps to promote copyright infringement and goes beyond mere distribution in knowledge of the actions of third parties, shall be liable for the resulting infringing acts by third parties using the device, regardless of the lawful use of the device.”

In his petition to the Supreme Court yesterday, Cox said the appeals courts “are split on the scope of this ruling, developing different standards for when it is appropriate to hold an online service provider secondarily liable for copyright infringement committed by users.”

Cox asked the judges to decide whether the 4th Circuit “erred[ed] by holding that a service provider can be held liable for a ‘substantial contribution’ to copyright infringement simply because it knew that individuals were using certain accounts to commit copyright infringement and failed to block access, without any evidence that the service provider actively promoted or otherwise intended to promote the copyright infringement.”

The case raises another important question, Cox told the SCOTUS:

Generally, a defendant cannot be held liable as a willful violator — and faces higher penalties — unless he has proof that he knew the high risk that his own conduct was illegal or recklessly ignored it. Disagreeing with the Eighth Circuit, the Fourth Circuit upheld an instruction that allowed the jury to find willfulness when Cox knew its subscribers' conduct was illegal — without proof that Cox knew its own conduct in failing to terminate them was illegal.

The judges should decide whether the 4th District “erred[ed] by holding that mere knowledge of the direct violation of another's rights is sufficient to establish intent,” Cox said.