ISP Liability Decision Challenged by Cox at Supreme Court, Seeking Rejection of Fourth Circuit's Judgment
In a significant move, Cox Communications, Inc. has filed an opening brief with the U.S. Supreme Court, challenging a decision by the U.S. Court of Appeals for the Fourth Circuit that held the company liable for contributory copyright infringement. The case presents fundamental questions regarding the role of internet service providers (ISPs) in copyright infringement and the standards for contributory liability.
Cox relies on several landmark cases, including Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., Twitter, Inc. v. Taamneh, and Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, to support its argument. The company argues that contributory liability requires purposeful, culpable conduct, and merely continuing to provide internet service after receiving notice does not meet that legal threshold.
The Fourth Circuit's decision affirmed a jury's verdict of contributory infringement against Cox for infringement committed by its subscribers. However, Cox maintains that the only way to avoid liability under this approach would be to terminate services upon accusation, effectively turning internet providers into internet police.
The brief argues against the Ninth Circuit's 'simple measures' test, stating that failure to act cannot establish liability. Cox also challenges the Fourth Circuit's standard for willfulness, stating that willfulness requires proof that the defendant knew or recklessly disregarded that its own conduct was illegal.
The case raises concerns about the potential consequences of the Fourth Circuit's rule. If ISPs are held liable for user infringement, they could be blamed for various internet misuses, such as bullying, harassment, libel, racketeering, and unlawful gun sales. No court has recognized a duty to terminate internet service on this basis, and the United States continues to support Cox's view.
The brief further emphasizes that enhanced damages require bad faith or knowing misconduct, as stated in Halo Electronics, Inc. v. Pulse Electronics, Inc. and similar cases. Cox Communications, Inc. has implemented a comprehensive anti-infringement program that successfully reduced infringement across its network.
A Cox Communications spokesperson warned that the ruling could have far-reaching implications, potentially stifling innovation and investment in internet infrastructure. The company's stance counters common law principles and the Court's statements in Twitter that internet service providers should not incur culpability merely for providing services to the public.
The US Congress has conducted hearings and discussions regarding significant new obligations affecting internet services, especially in reaction to the EU's Digital Services Act (DSA) and related digital regulations. However, no new US federal law imposing similar sweeping mandatory obligations like the DSA has yet been enacted. The company's argument aligns with the Democrats' proposed measures to protect free speech against government suppression, though these face slim chances in the current Congress dominated by Republicans.
The potential consequences of the Fourth Circuit's rule include innocent users being thrown off the internet due to infringement by others. Cox urges the Supreme Court to reverse the Fourth Circuit's decision, arguing that contributory infringement liability requires affirmative conduct aimed at furthering infringement.
Internet service provided by Cox is a general form of internet access that supports numerous lawful activities. The company emphasizes that its role is to facilitate lawful communication and not to police the internet. The case is expected to set a precedent for the role of ISPs in copyright infringement cases and the standards for contributory liability.
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