American internet service provider Grande Communications has followed the lead of its rival Cox Communications in asking the US Supreme Court to intervene in its long-running copyright dispute with the major record companies.
Like Cox, Grande really ramps up what’s at stake in its filing with the Supreme Court, arguing that a dangerous legal precedent has been set as a result of a “nationwide litigation campaign by the US recording industry”, in which the major labels have sought to “impose massive liability on ISPs for supplying content-neutral internet access to arm’s-length customers who unilaterally engage in copyright violations”.
If it stands, Grande insists, that precedent will force every ISP to disconnect any customer who is accused of illegally accessing music files at least twice. Even if the customer is a business or school where numerous different people use the same internet connection.
The majors “brush aside the real-world challenges” this precedent “thrusts upon others”, Grande writes. They “shrug at the severe hardship it would impose on families, businesses, schools, hospitals and major institutions”, and the fact these rulings “endanger jobs, livelihoods, health, education, emotional wellbeing and political engagement”.
As a result, Grande reckons, “this case presents an exceptionally important question under the Copyright Act”. That question is as follows: “Is an ISP liable for contributory copyright infringement by providing content-neutral internet access to the general public and failing to terminate that access after receiving two third-party notices alleging someone at a customer’s IP address has infringed?”
The major record companies have now sued numerous US ISPs for copyright infringement for failing to stop their customers from accessing and sharing music via piracy services, despite the ISP being made aware of that infringement in copyright notices submitted by the labels.
The music companies have successfully argued that, by failing to deal with repeat infringers among their customer bases, the ISPs do not qualify for protection from the copyright safe harbour, and can therefore be held liable for their customers infringing the labels’ copyrights.
The key test cases in this domain were against Cox, which was ultimately ordered to pay $1 billion in damages to the majors. The damages bill after the majors successfully sued Grande was much lower, but still a pretty hefty $47 million.
Both Cox and Grande appealed the rulings against them and successfully forced a recalculation of the damages due. But in both cases the appeals courts confirmed that the ISPs were indeed liable for copyright infringement.
However, says Grande in its filing with the Supreme Court, the appeals courts were wrong in both cases. And aside from all the doom and gloom Grande reckons these rulings will cause once the ISPs start ramping up their copyright-prompted disconnections, the rulings also conflict with judgements in the Supreme Court.
That includes the 2023 ruling in Twitter v Taamneh, which - although not a copyright case - restricted the liabilities of social media companies in relation to the content distributed on their platforms.
All these arguments - and all the hyperbole about the outcome of these cases - have been presented by Cox in its bid to get the Supreme Court to intervene. So much so, the majors can probably pretty much cut and paste their Cox response when hitting back at Grande’s claims.
Grande acknowledges the Cox case, but says the Supreme Court should consider its legal battle with the majors too, “whether alone or as an ideal companion to Cox”.
It adds that there are some extra complexities in the Cox case that do not apply in its case.
So, while both disputes ultimately centre on the same copyright question - is an ISP liable for its customers’ infringement if it fails to terminate access after receiving two complaints? - the added complexities mean that simple question may not be clearly answered in any review of the Cox case.
Which is why, Grande says, the Supreme Court should consider its appeal too.