The copyright safe harbour contained in the US Digital Millennium Copyright Act, which has played a fundamental role in the management of copyrights online for more than 25 years, will be “a dead letter” - so basically defunct - if the US Supreme Court rules in favour of internet company Cox in its legal battle with the major record companies.
That’s according to lawyer Paul Clement, who was speaking for the majors as that big legal battle finally reached the top US court yesterday. Cox says it shouldn’t be liable for its customers’ music piracy under US copyright law, and wants the Supreme Court to reverse previous judgements that said it was.
However, according to Law360, Clement pointed out that the DMCA already removes those liabilities, providing an ISP deals with repeat infringers and infringement identified by rights owners. Cox just didn’t comply with those obligations.
But if the Supreme Court now sides with Cox in this case, he said, the ISP could “take tens of thousands of copyright notices” provided by record labels and “throw them in the trash”, and they can have its employees say “F the DMCA”, which one much quoted Cox exec once declared in internal documents.
A jury ruled in favour of the majors back in 2019, holding Cox liable for its users’ music piracy to the tune of a billion dollars. In the initial legal battle it was decided that Cox didn’t qualify for safe harbour protection under the DMCA, because it failed to do enough to deal with repeat infringers identified by the music companies.
On appeal, Cox hasn’t really dwelled on whether or not it met its obligations under the DMCA, instead arguing that - under US copyright law - it can only be held liable for its users’ infringement if it actively facilitates or encourages the piracy, not by passively providing an internet connection.
One complication is that, under US law, so called ‘secondary’ or ‘contributory’ copyright infringement is a principle that has been developed in the courts, rather than through clear rules in the Copyright Act.
A representative for the US government’s Solicitor General, who is backing Cox in this case, yesterday suggested that the Supreme Court judges consider what US patent law says about secondary liability. Though the majors are sure to counter that copyright is very different to patents when it comes to the involvement of third parties in another person’s infringement.
As far as the music companies are concerned, the principle that an ISP can be held liable for its users’ infringement under US law isn’t controversial, and the fact the DMCA provided a safe harbour with accompanying obligations for internet companies seeking to avoid those liabilities is proof of that.
Cox’s other big argument in its appeal is that, if it is forced to be more proactive in policing online piracy, mainly by disconnecting repeat infringers, lots of innocent internet users will be affected too. Because most internet connections are shared by multiple people. And in the case of customers like cafes, hospitals and universities, potentially many people.
That argument did seem to get a bit of traction in court yesterday. Running with the university example, judge Samuel Alito mused about how a university can “determine which particular students” are engaging in piracy activity, especially as there may be multiple infringers within a student population of thousands. “I just don't see how it's workable at all”, he concluded.
Clements, for the majors, will work hard to play down the doom and gloom predictions of mass internet disconnections, especially as those predictions do seem to have played a role in getting the government on Cox’s side in this dispute.
He’ll likely do that by repeatedly insisting that the DMCA safe harbour sets out a workable system for the ISP when it comes to dealing with piracy among its customer base, but Cox said “F the DMCA”. The lawyer has already reminded the judges of that fact multiple times.
“Keep in mind this went to a jury” he also added, “and it went to a jury of twelve people who probably didn’t want to lose their internet connection”. And yet, after hearing all the evidence, the jury had “very little trouble” in finding Cox liable.