Cox Communications told the Supreme Court that a lower court ruling holding internet service providers (ISPs) liable for customer copyright infringement would force companies to cut off “millions of users” from the internet.
The case centers on a 2018 lawsuit filed by companies including Sony Music Entertainment (the lead plaintiff), Universal Music Group, and Warner Music Group against Cox for allegedly not acting fast enough to disconnect subscribers accused of illegal music downloads.
The broadband provider filed a brief to the Supreme Court on Friday (August 29), over two months after the court granted Cox’s request to hear the company’s appeal of a Fourth Circuit decision that threw out a $1 billion penalty awarded to Cox by a Virginia jury.
Cox wrote in a 67-page filing, which you can read here: “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. Innocent users and infringers alike would be severed from service that is integral to nearly every aspect of modern life.”
“Innocent users and infringers alike would be severed from service that is integral to nearly every aspect of modern life.”
Cox Communications
“The decision to impose a duty to terminate upon allegation of infringement is too consequential to leave to courts and lay juries. It threatens to disrupt the careful balance between copyright protection and access to communications technology.”
The appeals court ruled that Cox could be held liable for “materially contributing” to copyright infringement simply by knowing that customers were using certain accounts to infringe but did not stop access. Cox argued that it “did not engage in a single affirmative act with the purpose of furthering infringement.”
The company wrote: “Cox simply provided communications infrastructure to the general public on uniform terms,” adding, “Imposing contributory liability in these circumstances flouts a century of this Court’s case law in the copyright context.”
“Cox simply provided communications infrastructure to the general public on uniform terms. Imposing contributory liability in these circumstances flouts a century of this Court’s case law in the copyright context.”
Cox Communications
Cox says it serves more than 6 million customers across 18 states. The ISP said only about 1% of its home and business clients are accused of copyright infringement in the case. Cox argued: “There is only so much an ISP like Cox can do to prevent infringement. Cox cannot (and should not) control what users do online. It is undisputed that Cox cannot monitor its users’ online activity through a customer’s internet connection in real-time or after the fact.”
The company warned that accepting the Fourth Circuit’s ruling would expose ISPs to liability “for literally everything bad that happens on the internet—bullying, harassment, libel, racketeering, unlawful gun sales … everything.”
Cox also argued that this would force providers to become “internet police” and potentially deny service to “homes, barracks, hospitals, and hotels” based on accusations alone.
Cox wrote some scenarios in its submission to the Supreme Court: “Grandma will be thrown off the internet because Junior illegally downloaded a few songs on a visit. An entire barracks or corporation will lose internet because a couple of residents or visitors infringed.”
Both Cox and the music companies have asked the Supreme Court to review the case. The Supreme Court was invited to provide input on the case in November 2024.
The labels have argued that “Cox was held liable not because it failed to do enough to police infringement, but because it took no meaningful steps to stop infringement and continued serving specific, identifiable subscribers even after receiving explicit notice of their repeat (and often rampant) infringement.”
Aside from Cox, other ISPs facing similar lawsuits against music labels include Charter Communications and Astound Broadband. Earlier this year, major record companies and ABKCO have settled a piracy lawsuit with Frontier Communications, ending a legal battle that threatened the internet provider with hundreds of millions of dollars in damages.
Music Business Worldwide
