The major record companies have formally urged the US Supreme Court to uphold previous rulings in their legal battle with American internet service provider Cox Communications.
Those are the rulings that secured the majors a billion dollars in damages, but also set important legal precedents to help the music industry in its ongoing battle against online piracy.
The labels want the Supreme Court to ignore the hyperbole put forward by Cox that those legal precedents will mean “innocent grandmothers and hospitals being tossed off the internet for someone else’s infringement”.
They also remind the court that the US Digital Millennium Copyright Act provided a way for Cox to avoid liability for its users’ infringement, but a key Cox exec once told his colleagues “fuck the DMCA”.
The majors v Cox dispute centres on the responsibilities of internet companies to deal with copyright infringement on their networks. Lower courts ruled that Cox could be held liable for the infringement of its users because it failed to disconnect customers that the majors identified as repeat infringers.
Cox, supported by most of its ISP rivals and even the US government, says that – if upheld – that ruling will result in internet companies having to disconnect large numbers of customers. Which will also impact on lots of non-infringing internet users who happen to use the same internet connection as an alleged infringer, including all those grandmothers and hospital patients.
The majors dispute that narrative, insisting Cox hasn’t demonsrated that any innocent bystanders would have been affected in the piracy cases raised by the music companies.
In their formal response, submitted yesterday, the majors also stress that legal precedents in the US have long recognised the concept of secondary or contributory copyright infringement, where a person or business knowingly contributed to another’s infringement, and is therefore legally liable for that conduct.
When internet usage went mainstream in the 1990s, they add, US Congress considered whether that contributory liability should also apply to internet service providers who knowingly facilitated customers involved in online piracy. Congress concluded that ISPs could be liable but, after intense lobbying from the then burgeoning internet sector, restricted those liabilities through the copyright safe harbour.
Therefore Cox already had the protection it now says it needs from the Supreme Court, it just chose not to fulfil the obligations set out in the DMCA to benefit from the safe harbour. That included the obligation to effectively deal with and if necessary disconnect repeat infringers.
In their Supreme Court filing, the majors say that when their dispute with Cox was considered in the lower courts, it was clearly demonstrated that “Cox made a deliberate and egregious decision to elevate its own profits over compliance with the law”.
Quoting internal correspondence between Cox employees, it says the ISP’s policy was to “supply the means for massive copyright infringement to specific users that it knew were ‘habitual offenders’ because ‘we want to hold on to every subscriber we can’”. Meanwhile, the person at Cox “responsible for compliance with the DMCA was openly contemptuous of the statute, telling his team “F the DMCA!!!’”
Elsewhere in their filing, the majors note Cox’s frequent proclamations of late about how important it is to ensure everyone has internet access in the modern age, and how bad it would be to cut off internet access to American citizens because of a few piracy allegations from music companies. This is a narrative that seems to have also been embraced by Donald Trump’s administration.
But, the majors add, Cox is more than happy to disconnect customers who don’t pay their bills. “While Cox waxes poetic about the centrality of internet access to modern life”, the majors write, “it neglects to mention that it had no qualms about terminating 619,711 subscribers for non-payment over the same period that it terminated just 32 for serial copyright abuse”.
The major’s filing concludes, “Cox may not think that helping 60,000 of its subscribers distribute more than 10,000 copyrighted works for free is a very big deal, but Congress, at least a century’s worth of this court’s cases, and respondents’ experiences with the real-world effects of infringement beg to differ”.
And so did the jury that originally considered this case they add, “a group of real-world individuals who undoubtedly depend on internet access in their own day-to-day lives”, but who – after “seeing all the evidence” and “hearing all the testimony” in this case, “did not hesitate to find Cox liable for willful contributory infringement”.
The Supreme Court should do likewise, the majors insist.
