Solicitor General’s Motion to Participate in Cox ISP Copyright Case granted by Supreme Court
Solicitor General’s Motion to Participate in Cox ISP Copyright Case granted by Supreme Court
Sony’s argument that the Digital Millennium Copyright Act (DMCA) supports its position was rejected by Cox as Sony failed to cite from the statute indicating a presumption of liability.
A motion from the US Solicitor General to participate in oral argument as an amicus in the copyright case between Cox Communications and Sony Music Entertainment was granted by the US Supreme Court.
The Court agreed to hear the case in June following Cox filing its opening brief in August. Since then, Sony Music Entertainment in October filed its response brief followed by Cox’s reply brief on November 7.
Cox in its reply brief pushed back forcefully against what it characterized as Sony’s “two-notices-and-terminate rule”, arguing that the case rests on infringement by subscribers with “at least three… notices”. Implying Cox is liable for failure to terminate after the second notice. If the U.S. Court of Appeals for the Fourth Circuit’s decision is upheld, it would force ISPs to terminate internet access for entire households, businesses, and institutions after just two infringement notices; Cox argued. The record unquestionably showed this included “‘hospitals’ and ‘senior citizens,’ as well as dorms, barracks, and even regional ISPs, that such a rule would result in “mass evictions from the internet”; the brief noted.
Contributory liability requires an “affirmative, culpable act with the purpose of furthering the misuse,” and that simply providing internet infrastructure does not meet that standard; Cox said. According to the brief, Sony attacked not a pirate streaming website nor a disruptive music platform, but “basic communications infrastructure constituting ‘the mother of all multi-use technology’ offered ‘to the general public on uniform terms.’”
The brief relied heavily on Supreme Court precedent and noted that both Metro-Goldwyn-Mayer Studios, Inc. versus Grokster, Ltd. and Twitter, Inc. versus Taamneh stressed on the need for affirmative conduct with intent to facilitate wrongdoing. Twitter was referenced by Cox for the proposition that “Internet or cell service providers [do not] incur culpability merely for providing their services to the public writ large.”
Its own anti-infringement program, Sony had already suspended over 67,000 accounts during the claim period alone and deterred 98% of infringers; Cox further highlighted. If Sony can now vilify that program as a failure to “’tak[e] any serious effort to stop these infringers from infringing,’ no ISP is safe.
Sony proposed a “new presumption of culpability” under which courts can presume a defendant’s purpose and intent to promote infringement when the defendant knows of a specified customer’s misuse, as per the brief. This theory was rejected by Cox as inconsistent with Supreme Court precedent, noting that the Court rejected a knowledge-based theory in Kalem Co. versus Harper Bros.
Sony’s argument that the Digital Millennium Copyright Act (DMCA) supports its position was rejected by Cox as Sony failed to cite from the statute indicating a presumption of liability. Instead, Sony referred to the Senate Report accompanying the DMCA, which stated that liability would be adjudicated based on the doctrines of contributory liability “articulated… in the court decisions,” Cox argued. Cox said that the Congress enacted Section 512 because it anticipated lawsuits, not because it assumed liability for every type of service provider covered.
