Supreme Court Hears Case That Could Trigger Big Crackdown on Internet Piracy

upstart writes:

Supreme Court hears case that could trigger big crackdown on Internet piracy:

Supreme Court justices expressed numerous concerns today in a case that could determine whether Internet service providers must terminate the accounts of broadband users accused of copyright infringement. Oral arguments were held in the case between cable Internet provider Cox Communications and record labels led by Sony.

Some justices were skeptical of arguments that ISPs should have no legal obligation under the Digital Millennium Copyright Act (DMCA) to terminate an account when a user's IP address has been repeatedly flagged for downloading pirated music. But justices also seemed hesitant to rule in favor of record labels, with some of the debate focusing on how ISPs should handle large accounts like universities where there could be tens of thousands of users.

"There are things you could have done to respond to those infringers, and the end result might have been cutting off their connections, but you stopped doing anything for many of them," Sotomayor said to attorney Joshua Rosenkranz, who represents Cox. "You didn't try to work with universities and ask them to start looking at an anti-infringement notice to their students. You could have worked with a multi-family dwelling and asked the people in charge of that dwelling to send out a notice or do something about it. You did nothing and, in fact, counselor, your clients' sort of laissez-faire attitude toward the respondents is probably what got the jury upset."

A jury ordered Cox to pay over $1 billion in 2019, but the US Court of Appeals for the 4th Circuit overturned that damages verdict in February 2024. The appeals court found that Cox did not profit directly from copyright infringement committed by its users, but affirmed the jury's separate finding of willful contributory infringement. Cox is asking the Supreme Court to clear it of willful contributory infringement, while record labels want a ruling that would compel ISPs to boot more pirates from the Internet.

Rosenkranz countered that Cox created its own anti-infringement program, sent out hundreds of warnings a day, suspended thousands of accounts a month, and worked with universities. He said that "the highest recidivist infringers" cited in the case were not individual households, but rather universities, hotels, and regional ISPs that purchase connectivity from Cox in order to resell it to local users.

If Sony wins the case, "those are the entities that are most likely to be cut off first because those are the ones that accrue the greatest number of [piracy notices]," the Cox lawyer said. Even within a multi-person household where the IP address is caught by an infringement monitoring service, "you still don't know who the individual [infringer] is," he said. At another point in the hearing, he pointed out that Sony could sue individual infringers directly instead of suing ISPs.

Justice Amy Coney Barrett asked Cox, "What incentive would you have to do anything if you won? If you win and mere knowledge [of infringement] isn't enough, why would you bother to send out any [copyright] notices in the future? What would your obligation be?"

Rosenkranz answered, "For the simple reason that Cox is a good corporate citizen that cares a lot about what happens on its system. We do all sorts of things that the law doesn't require us to do." After further questioning by Barrett, Rosenkranz acknowledged that Cox would have no liability risk going forward if it wins the case.

Kagan said the DMCA safe harbor, which protects entities from liability if they take steps to fight infringement, would "seem to do nothing" if the court sides with Cox. "Why would anybody care about getting into the safe harbor if there's no liability in the first place?" she said.

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