Supreme Court Grapples With Internet Providers’ Duty to Stop Piracy

In a major copyright case, the Supreme Court on Monday heard arguments about whether internet providers can be blamed for their customers’ acts of digital piracy.

Cox Communications, the cable provider, appealed a lower court ruling in favor of Sony Music Entertainment, Warner Music Group, Universal Music Group and other labels. The record companies sued Cox in 2018, alleging that its users had illegally downloaded some 10,000 songs, and that the cable provider had ignored repeated complaints about it.

At trial, the jury awarded the labels $1 billion. The 4th Circuit Court of Appeals upheld the district court’s ruling on willful contributory infringement, but overturned on another theory of infringement and ordered a new trial on damages — which Cox estimates could rise as high as $1.5 billion.

In its appeal to the Supreme Court, Cox argued that merely providing internet service to users who illegally downloaded songs was not enough to establish secondary liability under copyright law.

The Motion Picture Association and the Electronic Frontier Foundation — traditional antagonists on copyright matters — took opposing sides in amicus briefs. The MPA, which represents seven Hollywood studios, argued that the threat of liability encourages service providers to take anti-piracy measures.

“If this Court were to embrace Cox’s theory, the existing safeguards against ubiquitous piracy could crumble,” the MPA wrote in its brief.

The EFF, meanwhile, warned that the lower court ruling, if allowed to stand, could make service providers so fearful of liability that they might cut off internet access for millions of innocent users.

Some of the justices appeared skeptical of Cox’s arguments, noting that the labels had repeatedly alerted the company to illegal downloads by particular IP addresses.

“You know that a particular location is infringing, and most of the time you’re doing nothing,” said Justice Sonia Sotomayor. “Why aren’t you contributing to that infringement?”

Joshua Rosenkranz, representing Cox, argued that the company is a good corporate citizen that takes affirmative steps to combat piracy. But Justice Elena Kagan noted that Cox’s theory would immunize the company regardless of its anti-piracy efforts.

“As I understand your argument, it could be the worst corporate citizen of all time and still it doesn’t matter that there would be no liability?” she asked.

A couple of the conservative justices warned about expanding the scope of liability for infringement, suggesting that such policy matters should be left up to Congress.

“Congress still hasn’t defined the contours of what secondary liability should look like,” said Justice Neil Gorsuch. “Here, we are debating them, right? So shouldn’t that be a flag of caution for us in expanding it too broadly?”

Paul Clement, who represented Sony, was pushed on the potential consequences of a ruling in Sony’s favor. Justice Samuel Alito suggested that a provider might have to cut off access to an entire university to punish a handful infringers on campus.

“I really don’t see how your position works in that context,” Alito said.

After some back-and-forth, Clement said, “the ISP is supposed to sort of have a conversation with the university.”

Alito suggested that it would be impossible for the university to police its students’ internet behavior in order to maintain service.

“I just don’t see how it’s workable at all,” he said.

Sotomayor suggested a possible rule by which providers would be liable for refusing to cut off infringing households, but would not be liable for larger accounts, like universities.

Gorsuch, meanwhile, pushed for a narrower ruling — either limiting the scope of secondary liability, or by simply finding in Cox’s favor.

“Obviously, I prefer door number 3,” Clement said.