Cox Communications seeks Supreme Court review in copyright dispute

“The question of who is responsible for copyright infringement on the Internet has enormous public implications and affects the interests of rights holders, businesses and users on a far-reaching scale,” Cox's lawyers wrote in their motion for leave to appeal.

At issue is a 2018 lawsuit filed by record labels claiming Cox should be held responsible for customers who allegedly committed copyright infringement a decade ago. Record labels have filed several similar lawsuits against broadband providers, claiming the providers failed to crack down on users who illegally download and share music.

Back then, record labels had invested heavily in selling paid digital downloads, saying that fighting piracy was key to protecting this burgeoning business. Today, music streaming services dominate the digital distribution market.

A federal district court jury ruled in favor of the record companies in 2019, saying Cox failed to adequately prevent its customers from illegally downloading and sharing music.

In February, a federal appeals court overturned the $1 billion verdict, dismissing one of the lawsuits against Cox because the company did not profit from the allegedly pirated music. In their ruling, however, the appeals judges upheld another part of the verdict, in which the jury in the original trial had found that Cox bore some liability for failing to protect its broadband customers from illegal conduct.

The Appellate Panel also remanded the case to the District Court for a retrial of the damages claims.

That same month, a lawyer for the record companies said the appeals court panel had “affirmed the jury's verdict that Cox was a willful infringer” and said the record companies expected a new jury to return “a meaningful verdict.”

A message left for the lawyer for the record companies suing was not immediately answered.

Cox Communications is one of the largest Internet service providers in the United States, with millions of customers. The company is a subsidiary of Cox Enterprises, the parent company of The Atlanta Journal-Constitution.

Alfred Yen, a Boston College law professor who studies copyright and the Internet, said the Supreme Court could take up this case or similar ones winding their way through the lower courts. As the Internet has evolved, questions have remained, such as who is responsible for copyright infringement, the extent to which such infringement is permissible and what remedy is provided for such conduct.

Anyone who violates copyright is liable for their actions, said Yen. However, it is not entirely clear whether those who do business with them are also liable.

Cox is essentially trying to argue that internet service is like a utility, Yen said, pointing out that utilities don't just shut off power because the power might be used to commit an illegal act. There has to be a higher-level cause first.

Yen, who is likely to file a so-called “amicus curiae” brief in support of Cox's request for Supreme Court review, said when the internet was invented, it was more of a novelty. Today, it has become an essential part of global commerce and serves as a means for Americans to manage many aspects of their lives, from work to schooling to digital banking to health care.

“The consequences of an interruption to Internet service are not insignificant,” he said.

Still, Yen said ISPs bear some responsibility for illegal activities on their networks, but the question is to what extent.

And could an Internet provider take less severe measures, such as blocking a user's access to a file-sharing service that enables copyright infringement, to put an end to copyright infringement, he asked.

“In particular, the court needs to be more specific about when selling an ongoing internet service to someone is unreasonable,” Yen said.

Cox Communications defended its anti-piracy protocols in court and on appeal. In its petition to the Supreme Court, the company argued that less than 1% of its millions of users had violated copyright laws and that its policies had helped curb more than 95% of the abuses occurring on its networks.

“Imposing liability on providers simply because they continue to offer their service after receiving allegations of copyright infringement on a particular IP address will have dangerous and drastic consequences,” Cox said in his petition. “Grandma will be kicked off the Internet because Junior visited her and illegally downloaded songs. An entire dorm or business will lose Internet access because a few residents or customers committed copyright infringement. Even for individuals who have actually committed copyright infringement, losing Internet access is a very severe penalty for illegally downloading two songs. A person without Internet could lose their job or have to drop out of school.”

The damage from a possible loss of Internet access would be greater in areas with fewer providers, Cox argues.

“The consequences are particularly devastating for customers in rural areas who often have no other ISP option – the terminated customers are irretrievably cut off from society,” Cox's lawyers said in the complaint.

Cox said the appeals court's ruling, if it stands, would have other downstream consequences as well. Businesses, hospitals, schools and other establishments that provide wireless Internet access to the public or their customers would also face having their Internet access blocked if their users were found to have violated copyright law, Cox said.

Yen said the case also raises concerns about privacy online when companies face such great liability and risk from misconduct by users of their networks.