Major record companies are “rewriting the record” in a bid to stop the US Supreme Court intervening in the copyright case involving internet service provider Grande Communications. That is what the US ISP says in its latest court filing asking the Supreme Court to overturn a ruling that awarded the majors $47 million in damages and said Grande was liable for its customers’ music piracy.
In their own filing with the Supreme Court last month, the majors argued that their legal battle with Grande - and other ISPs like Cox Communications - centre specifically on what they call ‘egregious copyright infringement’. That’s not true, says Grande in its own response, while asking what ‘egregious copyright infringement’ even means.
The majors claiming that the case was only ever about ‘egregious infringement’ is them “blatantly rewriting the record”, the ISP says. When the lower courts considered the dispute, notes Grande, they “did not say anything about ‘egregious’ infringement - because respondents’ case was not limited to egregious infringement”, before acidicly adding “whatever that means”.
The Grande and Cox cases are among a flurry of lawsuits filed by the majors over the last decade in an attempt to hold ISPs liable for contributory copyright infringement for failing to stop their customers from illegally accessing and sharing music files, despite the ISPs being made aware of the piracy by the record labels.
For years now it has felt like the music industry was winning that argument, with several courts agreeing that the ISPs should indeed be held liable for copyright infringement in these scenarios. As a result, other ISPs were successfully pushed into settling lawsuits filed by the majors.
However, both Grande and Cox want the Supreme Court to intervene and overturn past rulings, reversing the precedents that have been set in these cases.
In order to achieve that, they have hyped up the potential impact of those precedents, arguing that they mean ISPs will have to disconnect customers based on one or two copyright complaints, even if the customer is a cafe or college and it’s not clear who specifically pirated the music.
That narrative is gaining momentum, with Donald Trump’s Solicitor General D John Sauer recently urging the Supreme Court to review the Cox case because the ruling could “cause numerous non-infringing users to lose their internet access”, and “losing internet access is a serious consequence, as the internet has become an essential feature of modern life”.
Keen to play down this doom and gloom narrative, the major labels recently told the Supreme Court that their legal battles with the ISPs only ever related to egregious conduct.
Egregious conduct on the part of the ISPs’ users, like the dozens of Grande customers who “infringed more than 1000 times” and the one user who “infringed nearly 14,000 times”. And egregious conduct on behalf of the ISPs, like Cox pretending it disconnected music pirating customers when it didn’t, or Grande’s policy to basically never disconnect a customer on copyright grounds.
Copyright owners like the music companies “are not going after ISPs with good-faith policies that occasionally allow a repeat infringer to slip through the cracks”, the majors added, insisting they “instead targeted the worst offenders: companies that refuse to terminate paying customers even when they are put on notice that the customers are exploiting the service to repeatedly infringe copyrights”.
To that end, the majors argued, there is no need for the Supreme Court to overturn or even review its legal battle with Grande. The lower court was right to hold the ISP liable for contributory copyright infringement, and the precedent set in this case won’t result in millions of Americans losing internet access.
Which is possibly true, but - Grande insists in its new filing - the majors can’t suddenly introduce the concept of ‘egregious' infringement’ at this late stage in their legal battle. Because with at least some of the customers the majors highlighted earlier on, only one or two incidents of infringement were reported.
The major label’s legal claims “did not set any ‘egregious’ threshold - whatever that might be”, Grande writes. They sued the ISP “for providing services to ‘known infringing subscribers’ - full stop”. All that mattered was that Grande “received multiple notices - read: at least two - of alleged misconduct and did nothing in response”.
Therefore, Grande insists, Sauer is right to say that the ruling in the Cox case - and by association the Grande case - raises big questions about when ISPs can be liable for their users’ piracy - and those questions are “legally and practically important". And therefore the Supreme Court should consider these rulings.