SCOTUS will consider liability of internet company for known music piracy by its users
The U.S. Supreme Court agreed Monday to decide whether an internet service provider can be liable for materially contributing to copyright infringement if it failed to terminate internet access for customers known to be pirating music.
The Supreme Court granted cert in an appeal by Cox Communications, which maintains that a decision imposing liability by the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, “threatens mass disruption across the internet.”
Cox Communications had received infringement notices from an anti-piracy company called MarkMonitor that caught internet users downloading or distributing copyrighted music, according to the 4th Circuit’s Feb. 20, 2024, decision. MarkMonitor sent Cox Communications 163,148 infringement notices during the two-year period at issue.
Cox Communications terminated only 32 subscribers for infringement while terminating more than 600,000 subscribers for failure to pay their bills, according to a brief opposing cert filed by Sony Music Entertainment and other music companies.
After receiving a notice, Cox Communications would email an automated warning to the subscriber. The notice varied based on how far along that the customer was in Cox Communications’ 13-strike policy, which allowed an infringer 13 strikes before termination, according to the music company brief. Eventually, Cox Communications “simply stopped terminating infringing subscribers,” the music company brief alleges.
“In practice,” Cox Communications said in its brief, “the accounts that continued to rack up notices without termination were regional ISPs, universities, hotels, military housing and other business accounts used by hundreds or thousands of individual users—situations where account termination would be highly impractical and carry disproportionately devastating consequences.”
Jurors had found Cox Communications liable for its customers’ infringement of 10,017 copyrighted works. Jurors determined that the conduct was willful, which increased the statutory damages, and awarded $1 billion to the music companies.
The 4th Circuit affirmed a jury finding of contributory infringement and upheld a jury instruction that said jurors could find willful infringement. But the appeals court reversed a finding of vicarious liability and remanded for a new trial on damages.
“The 4th Circuit held that petitioner Cox Communications—which provides internet service to millions of homes and businesses—must either terminate internet connections previously used for infringement or else face liability for any future infringement,” the cert petition says. “In doing so, the court installed the most draconian secondary-liability regime in the country.”
Cox Communications asked the Supreme Court to review the contributory infringement issue, along with a second question: whether it could be liable for willful infringement when it knew that subscribers’ conduct was illegal but there was no proof that it knew that its failure to terminate infringing subscribers was illegal.
Cox Communications could have avoided liability under a safe-harbor provision of the Digital Millenium Copyright Act, which immunizes online service providers that adopt and reasonably implement a policy terminating subscribers who are repeat infringers, the music companies say. The 4th Circuit previously found that Cox Communications didn’t qualify for the safe harbor.
Publications with coverage of the cert grant include Reuters, Law.com, Law360 and SCOTUSblog.
The case is Cox Communications Inc. v. Sony Music Entertainment.
The SCOTUSblog case page is here.
See also:
All internet service providers in US must block 3 pirate streaming sites, federal judge rules
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