Cox Communications was ordered to pay $1 billion for not doing enough to stop music piracy. The company says that judgment could “jeopardize internet access for all Americans.”
WASHINGTON − The entertainment industry’s seemingly losing battle to stop music from being illegally copied and shared in the digital age hits the Supreme Court on Dec. 1 in a case both sides say could have huge consequences for both the industry and internet users.
A decision by the high court that fails to hold internet service providers accountable for piracy on their networks would “spell disaster for the music community,” according to groups representing musicians and other entertainers.
But Cox Communications, the largest private broadband company in America, argues too tough a standard could “jeopardize internet access for all Americans.”
The world’s leading recording companies and music publishers say Cox helped 60,000 customers distribute more than 10,000 copyrighted works for free, contributing to a problem that robs the industry of billions of dollars a year.
Jury said Cox owed $1 billion in damages
Cox asked the Supreme Court to intervene after it was sued by Sony Music Entertainment and more than 50 other record labels for not taking reasonable steps to prevent piracy and not cutting off service for repeat offenders.
In 2019, a jury sided with the music industry and said Cox owed $1 billion in damages.
The Richmond-based 4th U.S. Circuit Court of Appeals threw out the damages, ordering a new trial based on reduced violations.
The Supreme Court declined the record labels’ request to review whether the lower court was right to throw out one type of copyright violation and agreed to hear Cox’s appeal over whether the company can still be held liable for “materially contributing” to copyright infringement.
Cox argues that to be liable, it has to actively assist piracy − not just fail to prevent it.
Cox says service providers are not `internet police’
When an antipiracy company hired by the Recording Industry of America discovers an internet user downloading or distributing copyrighted music, it flags that information and the user’s internet protocol address for the service provider.
But Cox argues that being penalized for continuing someone’s internet service “after receiving automated notices accusing an unknown user at a home or business” of illegally copying or sharing music “defies common law and common sense.”
The standard the 4th Circuit applied, the company’s lawyers told the Supreme Court, would leave internet service providers no choice but to cut off service to homes, military barracks, hospitals and hotels based only on a “bare accusation” against one user at an IP address.
“That notion turns internet providers into internet police and jeopardizes internet access for millions of users,” they wrote in a filing.
Cox backed by Justice Department, X and ACLU
Cox has the backing of the Department of Justice, tech companies like X and Google, and the American Civil Liberties Union.
In a joint filing with other free speech advocates, the ACLU amplified Cox’s argument about the potential collateral damage caused by cutting off service “based merely on notices from copyright owners – which are nothing more than untested, unverifiable allegations.”
“Parents’ internet access, for example, may be terminated based on the conduct of their children – over even their children’s friends,” the groups wrote. “A hospital that offers internet access to dozens or even hundreds of patients and their families could find critical access shut off.”
Music industry says Cox barely tried to stop piracy
Groups on the other side say such “doom-and-gloom” predictions present a false choice.
Cox had less drastic ways of stopping piracy but didn’t use them, lawyers for the Motion Picture Association said in a brief supporting the music industry.
“Cox has no one but itself to blame for having made the intentional choice not to take even minimal steps to address its customers’ repeat infringement,” they wrote.
At one point, peer-to-peer file sharing – the most common way music is pirated – made up 21% of all traffic on Cox’s network, according to Sony.
Sony’s lawyers also highlight an email from a Cox manager overseeing compliance with the Digital Millennium Copyright Act, who told his colleagues: “F the dcma!!!”
Trade associations for the music industry said they’ve tried multiple ways of getting internet service providers to help stop the massive amount of copyright infringement that is threatening the viability of the industry.
Music companies turned to lawsuits as a last resort against service providers like Cox that initially engaged in talks with the industry but “ultimately withdrew and went its own way,” they said.
“Cox was not found liable for merely knowing that its customers engaged in infringement,” they wrote. “It was subjected to enhanced statutory damages because it knowingly engaged in a campaign to flout its legal obligations in the interest of preserving revenue.”
