Trump admin tells SCOTUS: ISPs shouldn’t be forced to boot alleged pirates

The Trump administration is backing cable company Cox in a battle that could determine whether Internet service providers are forced to disconnect users accused of piracy.

Cox, which says ISPs shouldn’t have to terminate customers based on unproven allegations of copyright infringement, has been seeking Supreme Court review of Sony’s victory in the underlying lawsuit. The court asked the US solicitor general to file a brief expressing the views of the United States government. Solicitor General John Sauer, a Trump nominee, filed a brief yesterday.

The Supreme Court “should grant certiorari to address the first question presented in Cox’s petition: whether an ISP materially contributes to copyright infringement by continuing to provide Internet access to particular subscribers after receiving notice that copyright infringement has occurred on their accounts,” Sauer wrote.

Last year, the US Court of Appeals for the 4th Circuit vacated a $1 billion damages award that Cox would have had to pay because it found that Cox did not receive a direct financial benefit from its subscribers’ infringement of copyrights. But the appeals court affirmed a jury’s finding that Cox was guilty of willful contributory infringement, raising the likelihood that ISPs would have to terminate customers accused of piracy to avoid liability. The case was filed by Sony and other record labels.

Widespread terminations feared

The 4th Circuit decision, if not overturned, “subjects ISPs to potential liability for all acts of copyright infringement committed by particular subscribers as long as the music industry sends notices alleging past instances of infringement by those subscribers,” Sauer wrote. This could “encourage providers to avoid substantial monetary liability by terminating subscribers after receiving a single notice of alleged infringement.”

Sauer wrote that the “court of appeals’ decision holding Cox liable departs from this Court’s contributory-infringement precedents… The contributory-infringement question is legally and practically important, and courts of appeals have taken divergent approaches to the question.”

The US brief argued that “an ISP is not liable for contributory copyright infringement for failing to terminate subscribers after receiving notices of infringement.” Rulings in Sony v. Universal City Studios and MGM Studios v. Grokster “make clear that contributory liability for copyright infringement requires more than knowledge that others have put the defendant’s products to infringing uses,” Sauer wrote. “Instead, it requires ‘culpable intent’ to cause infringement.”

“If Cox had explicitly or implicitly marketed its service as being particularly useful for infringers, or if it had encouraged subscribers to use Cox’s Internet service to infringe, liability might be appropriate,” Sauer wrote. “But as the court of appeals acknowledged, Cox’s business model was indifferent to whether its subscribers used the Internet for lawful or unlawful purposes.”

Piracy notices don’t identify specific users

Adopting Sony’s legal theory would “threaten liability for other service providers (e.g., an electric utility) that might be asked to cut off service to identified customers who had previously used the service for unlawful purposes,” Sauer wrote. Sauer also noted that infringement notices sent by copyright holders don’t identify individual users:

Sony overstates the specificity of Cox’s knowledge. Even accepting “that notices of past infringement” establish Cox’s “knowledge that the same subscriber was substantially certain to infringe again,” the notices made Cox aware of past and likely future infringement on particular accounts; they did not identify the specific infringing users of Cox’s Internet services. Many accounts that triggered multiple notices belonged to hotels, hospitals, universities, and regional ISPs serving hundreds or thousands of individual users. Under the decision below, Cox would be held liable for direct infringement committed by any of those users, whose identities it does not know and with whom it has no contractual relationship.

Sauer further argued that the Supreme Court should “grant review of the second question presented in Cox’s petition, which concerns the circumstances under which a contributory infringer can be held liable for enhanced statutory damages based on a finding of ‘willful’ infringement.”