A large Internet service provider wants the Supreme Court to rule that ISPs shouldn’t have to disconnect broadband users who have been accused of piracy. Cable firm Cox Communications, which is trying to overturn a ruling in a copyright infringement lawsuit brought by Sony, petitioned the Supreme Court to take up the case yesterday.

Cox said in a press release that a recent appeals court ruling “would force ISPs to terminate Internet service to households or businesses based on unproven allegations of infringing activity, and put them in a position of having to police their networks—contrary to customer expectations… Terminating Internet service would not just impact the individual accused of unlawfully downloading content, it would kick an entire household off the Internet.”

The case began in 2018 when Sony and other music copyright holders sued Cox, claiming that it didn’t adequately fight piracy on its network and failed to terminate repeat infringers. A US District Court jury in the Eastern District of Virginia ruled in December 2019 that Cox must pay $1 billion in damages to the major record labels.

Digital rights groups such as the Electronic Frontier Foundation (EFF) objected to the ruling, saying it “would result in innocent and vulnerable users losing essential Internet access.” The case went to the US Court of Appeals for the 4th Circuit, which vacated the $1 billion damages award in February 2024 but upheld one of the major copyright infringement verdicts.

Specifically, the appeals court affirmed the jury’s finding that Cox was guilty of willful contributory infringement and reversed a verdict on vicarious infringement. The vicarious liability verdict was scrapped “because Cox did not profit from its subscribers’ acts of infringement.”

Cox wants ruling on contributory infringement

On the contributory infringement charge, appeals court judges indicated that their hands were tied in part by Cox’s failure to make a key argument to the District Court. Proving “contributory infringement by an Internet service provider based on its subscribers’ direct infringement” can be achieved by showing “willful blindness,” the court said.

“Cox did not argue to the district court, as it does now on appeal, that notices of past infringement failed to establish its knowledge that the same subscriber was substantially certain to infringe again… Because Cox did not press this argument in the district court, it is forfeited for appeal,” the appeals court said. In District Court, Cox argued that copyright infringement notices sent to the ISP were too vague.

The Supreme Court held in MGM v. Grokster, in 2005, that “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.”

In its Supreme Court petition yesterday, Cox said that circuit appeals courts “have split three ways over the scope of that ruling, developing differing standards for when it is appropriate to hold an online service provider secondarily liable for copyright infringement committed by users.”

Cox asked justices to decide whether the 4th Circuit “err[ed] in holding that a service provider can be held liable for ‘materially contributing’ to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it.”

The case raises one other major question, Cox told SCOTUS:

Generally, a defendant cannot be held liable as a willful violator of the law—and subject to increased penalties—without proof that it knew or recklessly disregarded a high risk that its own conduct was illegal. In conflict with the Eighth Circuit, the Fourth Circuit upheld an instruction allowing the jury to find willfulness if Cox knew its subscribers’ conduct was illegal—without proof Cox knew its own conduct in not terminating them was illegal.

Justices should rule on whether the 4th Circuit “err[ed] in holding that mere knowledge of another’s direct infringement suffices to find willfulness,” Cox said.

https://arstechnica.com/?p=2043862