American internet service provider Cox Communications has yet again ramped up the rhetoric in its latest legal filing setting out why the US Supreme Court should reverse the billion dollar piracy judgement in its long running legal battle with the major record companies.
If that judgement isn’t reversed the only way it will be able to avoid having to pay future damages to the record labels is by “throwing entire homes, coffee shops, hotels, military barracks and regional ISPs off of the internet” says Cox with its typical flair for the dramatic.
In doing so, “innocent users” as well as copyright infringers “would be severed from a service that is integral to nearly every aspect of modern life”. In a filing last year, Cox talked about how “grandma will be thrown off the internet because Junior visited and illegally downloaded songs”, or “an entire dorm or corporation will lose internet because a couple of residents or customers infringed”.
In lower courts, the majors successfully argued that Cox had taken a deliberately slack approach to dealing with customers who had been identified as pirating music, and so the ISP should be held liable for contributory copyright infringement, to the tune of a billion dollars.
This was a key piracy ruling for the music industry, not just because of the mega-damages, but because it empowered the labels in their fight against online pirates, providing a framework for holding ISPs to account alongside individual infringers.
Cox’s most emotive argument against that ruling is that music piracy spotted by the labels often happens on internet connections used by multiple people, sometimes many people, because the connection is utilised by a college or a business or even a third party ISP. If Cox is obliged to disconnect any account associated with piracy, all the users of those accounts would be impacted.
In its new Supreme Court filing, Cox discusses its anti-piracy work and claims that – of the 49 accounts most frequently accused of being used to pirate music – “all but one were entities like regional ISPs, university housing, military barracks and multi-unit dwellings”, meaning that “termination would have meant throwing innocent users off the internet en masse”.
The major record labels have lambasted Cox’s ‘we’ll have to disconnect’ everyone claims many times previously. Earlier this year they told the Supreme Court that the ISP was held liable for copyright infringement by the lower courts not because it failed to disconnect everyone, but because it made “no meaningful steps to stop infringement”.
That said, Donald Trump appointed Solicitor General D John Sauer seemed to buy into the Cox doom and gloom narrative when he urged the Supreme Court to intervene in the case back in June.
The top court confirmed it would consider Cox’s appeal a couple of weeks later. The Supreme Court justices will now look at the case during the court’s next term, which begins in October, with Cox getting things rolling with this latest filing.
Elsewhere in its submission to the court, Cox provides a potted history of the US entertainment industry’s battle with piracy, recapping the Sony Betamax ruling from the 1980s – when the big piracy problem was home-taping – and the later Grokster ruling from the early days of online piracy and P2P file-sharing at the start of the 2000s.
The music industry enjoyed success in court against both Napster and Grokster back then, Cox notes, but this became harder as file-sharing became more decentralised, and file-sharing companies started basing themselves in countries where it was harder to pursue litigation.
Initially the labels started suing individuals who were accessing and sharing pirated music files, but that “made the industry unpopular” and “wasn’t especially lucrative”, Cox explains. So, “the music industry looked upstream – all the way upstream – to the ISPs”, boldly claiming – according to Cox – that “ISPs are obligated to enforce the law against their users”.
But the ways in which the majors – and the lower courts – have insisted that Cox should enforce the law are not justified by a strict reading of US copyright rules, or the precedents set in the Sony Betamax and Grokster cases, the ISP argues. Which is how we get to their claim that the billion dollar judgement against Cox “defies common law and common sense”.
Given the potential impact of the ruling – that “university housing, military barracks and multi-unit dwellings” may have their internet access chopped off – these obligations shouldn’t be interpreted into law by the courts, it says.
That’s because “only Congress is empowered to create a duty to terminate an internet service that carries such profound implications for members of the public and the nation’s economy”.
With all that in mind, Cox says, it is imperative that the Supreme Court should reverse the majors’ billion dollar win, and the resulting legal precedents. Of course, the record companies have heard all these arguments from Cox numerous times before, and are presumably busily cutting and pasting their existing counter arguments into their own Supreme Court submission.
