The Supreme Court heard arguments on Monday (December 1) in a copyright dispute that could set a precedent into whether internet service providers can be held liable when they fail to disconnect customers who repeatedly pirate music online.
The case centers on Cox Communications, which faces a retrial in a lawsuit against record labels including Sony Music Entertainment (the lead plaintiff), Universal Music Group and Warner Music Group.
The labels sued Cox, arguing it ignored “thousands” of infringement notices about customers illegally downloading more than 10,000 copyrighted songs and refused to disconnect repeat offenders.
The record companies accused Cox of failing to take preventive measures required under law. They cited evidence that a Cox manager overseeing compliance with the Digital Millennium Copyright Act told his team to “F the dmca.”
While Cox operated a 13-strike policy for potentially terminating infringing customers, the labels argued in October that “Cox made a deliberate and egregious decision to elevate its own profits over compliance with the law.”
In 2019, a jury in Alexandria, Virginia, sided with the labels, awarding them $1 billion. The jury found Cox liable for contributory infringement, which requires knowledge of infringement and contribution to it, and vicarious infringement, which requires ability to control the infringement plus obtaining financial benefit.
The 4th US Circuit Court of Appeals threw out that verdict in 2024 after reversing the vicarious infringement finding. The appeals court upheld the contributory infringement finding and ordered a new trial to calculate damages.
Cox now faces a retrial that could result in damages up to $1.5 billion.
Cox, the main subsidiary of Cox Enterprises, appealed to the Supreme Court. In late August, the company told the Supreme Court that a previous ruling holding ISPs liable for customer copyright infringement would force companies to cut off “millions of users” from the internet.
The company wrote at the time: “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 has also warned that a ruling against it could force “entire homes, coffee shops, hotels, military barracks, and regional ISPs off of the internet.”
“We are being put to two extremes here. How do we announce a rule that deals with those two extremes?”
Sonia Sotomayor, US SUpreme Court
During Monday’s arguments, the justices appeared skeptical of Cox’s assertion that mere awareness of user piracy could not justify liability for copyright infringement, Reuters reported. They also questioned whether holding Cox liable could affect innocent internet users.
Justice Sonia Sotomayor told Paul Clement, the attorney representing the labels, “We are being put to two extremes here. How do we announce a rule that deals with those two extremes?”
Reuters said some justices appeared to agree with the labels that Cox was particularly lax in addressing user infringement. Sotomayor told Cox’s attorney Joshua Rosenkranz that his client’s “laissez-faire attitude” toward infringement likely angered the jury.
The judge also used an analogy about a gun dealer knowingly selling a weapon to someone planning killing. “If I’m a gun dealer, and I’m selling to someone who says to me, ‘I want to kill my wife with this gun,’ I think the common law would say you knew what he was going to do with the gun, you joined in,” Sotomayor was quoted by Reuters as saying to Rosenkranz. “Why isn’t your continuing to provide internet service the same?”
Meanwhile, Reuters said Justice Amy Coney Barrett pressed Rosenkranz on what would motivate Cox to prevent piracy if it won. “You would have no liability risk, right, if you win going forward?” she reportedly asked.
“If I’m a gun dealer, and I’m selling to someone who says to me, ‘I want to kill my wife with this gun,’ I think the common law would say you knew what he was going to do with the gun, you joined in.”
Sonia Sotomayor, US SUpreme Court
The justices also questioned the labels on how broadly their contributory liability theory should apply. Clement said an ISP must know that a user is “substantially certain” to infringe before facing liability for inaction. Justice Clarence Thomas asked what would limit that approach, Reuters reported.
NPR said a decision is expected by summer.
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