American internet service provider Cox Communications has asked the US Supreme Court to review the ruling in its legal battle with the major record companies which initially resulted in a billion dollar damages bill. It says the judgement sets a precedent that means entire regions of the US could find themselves without internet access.
“Cox Communications has asked the Supreme Court to examine a copyright infringement case that could jeopardise internet access for Americans and fundamentally change how internet service providers manage their networks", says the company’s Todd Smith.
The ISP was held liable for its users infringing the copyright in the majors’ recordings through illegal file-sharing. That sets a very dangerous precedent, the ISP says in its filing with the Supreme Court, because it forces ISPs to be overly cautious whenever copyright owners make allegations of infringement against a user, increasing the chances of users losing their internet access. And yet, it argues, the scale of infringement among its user-base is low, mainly thanks to all its anti-piracy work.
It sets out those arguments in pretty dramatic terms in its court filing. Complying with the obligations imposed by the ruling in this legal battle, it says, will require cutting off “entire households, coffee shops, hospitals, universities and even regional internet service providers”, just because one person downloaded two tracks.
Running with that theme, it continues, “Grandma will be thrown off the internet because Junior visited and illegally downloaded songs. An entire dorm or corporation will lose internet because a couple of residents or customers infringed”. And even where it is the actual infringer who is affected by the termination, “loss of internet access is very heavy punishment for illegally downloading two songs. A person without internet might lose their job or have to drop out of school”.
All this doom and gloom will occur, it claims, despite “less than 1% of Cox’s subscribers” using their internet access to share infringing music files, and “Cox’s anti-infringement measures got 95% of that less than 1% to stop”.
None of these arguments are new and Cox has ramped up the drama before when hitting back at the record companies, previously telling the Fourth Circuit Appeals Court that the ruling would result in ISPs having to disconnect “the guilty and innocent alike from their schools, their livelihoods, their nanny cams, their news, and everything else they do online”.
During the original trial, the ISP was shown to have only paid lip service to its own copyright rules during the period the lawsuit related to, the early 2010s, which was a key reason why Cox could not rely on the copyright safe harbour to avoid liability.
The record companies will likely argue that there are reasonable and practical anti-piracy measures ISPs can and do implement that mean they can avoid liability for infringement without the widespread termination of internet accounts that Cox describes in its filing.
Elsewhere, Cox also argues that it’s not just ISPs that are impacted by the precedent set in this legal battle, with the record labels now also going after “downstream online service providers - from web-hosting companies to payment processors to search engines”. Which is true, in more recent years music companies and other rightsholders have started to pressure other kinds of internet services to do more to tackle piracy on their platforms.
That trend is important for Cox at this point, because the wider the possible impact of the precedent set in this case, the more likely the Supreme Court is to review it.
If it does accept the case, we’ll see if Cox's dramatic predictions of doom and gloom are more successful in the Supreme Court than they were in the district court and Fourth Circuit court of appeal.