ISPs tell Supreme Court they will not disconnect users accused of piracy

Four more major internet service providers told the U.S. Supreme Court this week that ISPs should not be forced to aggressively pursue copyright infringement on broadband networks.

While the ISPs fear financial liability from lawsuits from major record labels and other copyright holders, they also argue that mass layoffs of Internet users accused of piracy “would harm innocent people by depriving homes, schools, hospitals and businesses of Internet access.” The legal question arising from the case “is of extraordinary importance to the future of the Internet,” they wrote in a brief filed with the Supreme Court on Monday.

The amici curiae The suit was filed by Altice USA (operator of the Optimum brand), Frontier Communications, Lumen (aka CenturyLink) and Verizon. The suit supports cable company Cox Communications' attempt to recover from its defeat in a copyright infringement lawsuit brought by Sony. Cox asked the Supreme Court to take over the case last month.

Sony and other music copyright holders sued Cox in 2018, alleging that the company had failed to adequately combat piracy on its network and block repeat offenders. A jury in a U.S. District Court in the Eastern District of Virginia ruled in December 2019 that Cox must pay the major record labels $1 billion in damages.

Cox won a partial victory when the U.S. Court of Appeals for the Fourth Circuit overturned the $1 billion verdict, finding that Cox was not guilty of contributory copyright infringement because the company did not directly profit from the copyright infringements committed by users of its broadband cable network. However, the appeals court affirmed the jury's finding of willful aiding and abetting copyright infringement and ordered a new trial on damages.

ISPs say the future of the Internet is at stake

The Altice/Frontier/Lumen/Verizon brief states that the 4th Circuit Court’s ruling “endangers the future of the Internet” by “statements[ing] Internet service providers face massive liability if they do not enforce mass evictions. Blocking a subscriber would harm other residents of the building “who have not infringed the copyright and may have no connection to the infringer,” they write.

The automated processes used by copyright owners to detect copyright infringement on peer-to-peer networks are “notoriously flawed,” the ISPs wrote. Nevertheless, the Court of Appeals' “view of contributory copyright infringement would compel Internet service providers to block any subscriber after receiving allegations that an unknown person has used the subscriber's connection to commit copyright infringement,” the brief said.

Under the 4th Circuit's theory, “an Internet service provider is at fault if it knowingly fails to prevent a malicious actor from exploiting its service,” the statement said. According to the ISPs, “this would force Internet service providers to engage in large-scale terminations to avoid crippling damages, such as the $1 billion judgment awarded here against Cox, the $2.6 billion in damages sought by the same plaintiffs in a recent suit against Verizon, or the similarly large sums sought by Frontier and Altice USA.”

The potential liability for ISPs is up to $150,000 in damages for each work whose copyright is infringed, the complaint states. “Entertaining plaintiffs' lawyers may seek to hold Internet service providers liable for every wrongdoing on the Internet,” they write. This threat of financial liability distracts from ISPs' efforts to “fulfill Congress's goal of connecting all Americans to the Internet,” the ISPs say.