The US Supreme Court has been urged to review and overturn the judgement in the billion dollar legal battle between the major record companies and Cox Communications by four internet service providers, which compete with Cox but back their rival in this dispute.
The four ISPs - Frontier, Lumen, Altice and Verizon - have invested “hundreds of billions of dollars in network infrastructure” over the last three decades, they declare in a submission to the Supreme Court. They did that partly to pursue their own business interests, but also to help US Congress achieve its official objective of promoting “the continued development of the internet”. The ruling in the majors v Cox case “strikes at the heart of that effort”, they insist.
That’s because it “saddles ISPs with responsibility for online copyright infringement committed by others”, even though they “do not participate in, encourage or in any way assist” in that infringement. In fact, they “forbid copyright infringement through robust anti-piracy policies and programmes”.
And, of course, being held responsible for another’s infringement can prove to be very expensive indeed, because US copyright law allows statutory damages of up to $150,000 per infringed work. “Cox faced a $1 billion verdict”, the ISP's write. “Frontier is currently defending a $400 million lawsuit, Altice USA is defending a lawsuit with an immense range of potential statutory damages, and recent press reports suggest Verizon is facing up to $2.6 billion in potential liability”.
“The extortionate pressure such lawsuits exert is acute”, they add, and detracts from the ISP’s “continued innovation to fulfill Congress’s goal of connecting all Americans to the internet”.
Plus, the precedent set in the Cox case means ISPs will have to terminate any customer who is accused of copyright infringement. These “mass terminations” they insist, “would harm innocent people by depriving households, schools, hospitals and businesses of internet access”.
The major record companies - and BMG before them - successfully argued in court that Cox didn’t do enough to deal with repeat infringers among its customer base and, on that basis, should be held liable for its users’ music piracy. Cox was initially ordered to pay a billion dollars in damages, although the Fourth Circuit Appeals Court told the lower court to review that sum. It did not, however, overturn the ruling that Cox was liable.
Numerous other ISPs have been targeted with similar litigation, which is why the industry at large is keen for the Supreme Court to overturn the ruling in the landmark Cox case.
Cox itself filed a submission with the Supreme Court last month which really ramped up the drama, warning that that obligation to terminate any account accused of copyright infringement could require cutting off “entire households, coffee shops, hospitals, universities and even regional internet service providers”.
“Grandma will be thrown off the internet because Junior visited and illegally downloaded songs”, it went on. “An entire dorm or corporation will lose internet because a couple of residents or customers infringed”.
The other ISPs are not quite as bombastic in their filing, although they are just as doom and gloom in their predictions regarding the outcome if the ruling in the Cox case stays in place. And they back up all the arguments made in Cox's filing.
That includes the impact of the Supreme Court ruling last year in the Twitter v Taamneh case, which Cox and the other ISPs reckon backs up their arguments against the major record companies. Twitter v Taamneh was also focused on the responsibility of digital platforms in relation to the conduct of their users, specifically the posting of terrorism-related content to social media platforms.
In their submission to the court, the four ISPs say they want to “amplify Cox’s arguments” that the decision in their legal battle with the majors “flouts the traditional secondary-liability principles this court recently recognised in Twitter v Taamneh”.
In that case, they add, the Supreme Court stressed that “truly culpable conduct” exists when “the defendant consciously and culpably participated in a wrongful act so as to help make it succeed”. The court “emphasised the need for such active wrongdoing more than a dozen times”, they add. That is what is required to hold a company liable for the actions of its customers, they conclude, and “a communication provider’s failure to stop bad actors from misusing its service does not qualify”.