Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
Imagine losing internet access because someone in your household downloaded pirated music. We rely on the internet to learn, discover job opportunities, navigate across cities and the countryside, shop for the latest trends, file our taxes, and much more. Now all of that could be gone in an instant.
That is not a dystopian fantasy, but a real possibility raised by a case the Supreme Court will hear on Monday. In Cox Communications, Inc. v. Sony Music Entertainment, the justices will decide whether an internet provider can be held responsible for failing to terminate subscribers accused of repeat copyright infringements. The ruling could determine whether access to the internet—today’s lifeline for education, work, and civic life—can be taken away as punishment for digital misdeeds. Cox’s indifference to repeat infringement is condemnable, but a sweeping ruling could harshly punish thousands for one company’s bad faith.
Over seven years ago, a group of record companies sued internet service provider Cox for facilitating copyright infringement. They alleged that Cox’s subscribers infringed their copyrights in sound recordings and musical compositions by copying and distributing them via BitTorrent and other networks. Cox, they said, knew about the infringements, yet continued to provide network access to the infringers, who continued to infringe. A jury eventually found Cox liable under two theories, vicarious and contributory liability. An appellate court upheld the finding of willful contributory liability, which requires knowledge and a “material contribution” to the infringement. One of the two questions before the Supreme Court in Cox on Monday is whether a service provider can be held liable for materially contributing to copyright infringement because it knew specific accounts were being used to infringe and did not terminate access, but did not otherwise affirmatively foster or promote subscriber infringement.
Courts and legislatures have long sought to punish others for an individual’s unlawful activity if they supported the activity in some way. Legally, the one engaging in unlawful behavior is directly liable, while the others are secondarily liable. The idea is to deter unlawful activity by not just targeting the one who committed a wrong, but also those who facilitated it. For over a century, the Supreme Court has said others can be secondarily liable for another’s copyright infringement.
Mark Joseph Stern
This Dissent From a Reagan Judge Is One of the Most Unhinged Judicial Opinions in U.S. History
Read More
The scope of secondary liability is not infinite. Otherwise, any minor action or general service by a bystander could suffice. This was at issue two years ago in the Supreme Court case Twitter, Inc. v. Taamneh, which held that Twitter was not liable for facilitating terrorist attacks by merely providing a social media service and recommendation algorithms. Twitter did not act with bad intentions, and the link between Twitter and the specific attacks was weak.
Intent has been the polestar for the evolution of secondary liability—and especially the contributory liability theory—in copyright law. On this basis, merely offering a product that could be used for copyright infringement is not enough if that product is also capable of substantial noninfringing uses. Running a social media or e-commerce website is also insufficient unless there is knowledge of specific infringing content that could be removed.
Those that have worse intentions are often liable. Allowing second-generation copying on digital audio tape devices could suggest a desire to permit infringement. Knowing of a specific infringement on a platform and not removing it is infringement. Turning a blind eye to infringing sellers at your swap meet is infringement. Encouraging users to infringe using your product is also infringement.
Copyright law has changed in response to new technologies. Yet the heart of secondary liability development has always been intent. One’s actions after learning of specific infringements are indicative of their intent.
What makes Cox feel different from these earlier cases are the stakes. If I repeatedly post art infringing the copyrighted work of Kehinde Wiley to Instagram or Amazon, I will likely have my accounts suspended. Being banned from a social media or e-commerce platform would change my daily routine. But it would not upend my life. Losing access to the internet, however, would be cataclysmic. I could no longer easily access online financial services, job listings, news, or any of the other resources that we take for granted in the 21st century. Removing internet access (for over 57,000 accused accounts) would be a significant—and, under certain circumstances, troubling—remedy from Cox.
While repeat infringers are hardly innocent, removing their internet access could affect others too. Cox identifies subscribers by Internet Protocol addresses, unique identifiers assigned to a home or business, not necessarily an individual. Blocking an IP address would not just deprive a repeat infringer of internet access, but also their household or co-workers. Imagine losing your internet access because your teenager downloaded a few pirated songs. A single infringer could even lead to an internet outage for an entire library, school, or hospital.
The trouble is that Cox is not a sympathetic defendant. There is evidence that when Cox learned of specific instances of repeat copyright infringement occurring on its network, it increasingly did almost everything in its power to not act. Cox nominally had a repeat infringer policy. In theory, this policy led to increasingly severe warning emails and notices from Cox. That policy required 13 strikes for account termination, only counted one notice per subscriber per day, and reset the strike counter every six months. Termination was never automatic after 13 strikes, and there was no evidence Cox ever terminated a subscriber’s account without reactivating it. Internal communications at Cox reflected contempt for copyright law and a desire to maintain accounts to continue receiving subscription fees.
Cox’s bad intent is why this weighty decision is now before the Supreme Court. Copyright law has developed a clear rule for technology service providers. Once you learn of specific infringements, you must act to limit them if you can. Cox did provide warnings to its users once they infringed, but warnings are hollow when there is no actual threat of account termination.
-
This Content is Available for Slate Plus members only
The Supreme Court Is About to Hear a Case That Could Rewrite Internet Access
-
Haloclasty Is a Type of Physical Weathering Caused by Which Substance?
Cox did not necessarily have to terminate repeat infringers’ accounts, even after the 13th strike—particularly if they were associated with organizations such as libraries and schools. But it could have done more than it did to counter copyright infringement. Beyond mere warnings to the account holders, Cox could have eventually limited or slowed internet access. Where applicable, it could have worked with employers and schools associated with the IP addresses. It could have levied fines. It could have imposed other actual consequences. And, for the most egregious cases, Cox could have actually terminated accounts.
Because of Cox’s ill intentions, the Supreme Court may now impose a more draconian standard on internet providers. Termination of internet access may become the rule for repeat infringers rather than the rare necessity. Following oral argument on Dec. 1, the Supreme Court must delicately thread the needle between upholding copyright owners’ rights and punishing bad intent while still safeguarding internet access.
