Blame game for bootleg music leaves justices in a bind

WASHINGTON (CN) — The Supreme Court was stuck between a rock and a hard place on Monday as the justices heard oral arguments over whether internet service providers could be held liable for serial copyright abusers.

Music industry titans warned that immunizing Cox Communications from its users’ unlawful behavior would erase incentives to protect against copyright infringement and render federal protections a dead letter.

“Cox could take tens of thousands of copyright notices and throw them in the trash, and they could have its employees say, ‘F the DMCA,’” said Paul Clement, an attorney with Clement & Murphy representing Sony Music Entertainment, referring to the Digital Millennium Copyright Act.

Sony sued Cox for providing services to users who continually infringed on copyrighted works by downloading or distributing songs on the internet without permission. The litigation uncovered that a manager at Cox responsible for DMCA compliance told his team, “F the dmca.”

But Cox said it has no way to control what its users do online and forcing ISPs to become the internet police would jeopardize connectivity for millions of Americans.

“There is no sure-fire way for an ISP to avoid liability, and the only way it can is to cut off the internet not just for the accused infringer but for anyone else who happens to use the same connection,” said Joshua Rosenkranz, an attorney with Orrick Herrington representing Cox. “That could be entire towns, universities or hospitals. Turning internet providers into internet police for all torts perpetrated on the internet will wreak havoc with the essential medium through which modern public engages in commerce and speech.”

After nearly two hours of arguments on Tuesday morning, the high court seemed interested in a middle ground solution that would likely result in further litigation in the lower courts. However, there seemed to be some agreement that ISPs couldn’t eliminate liability for users’ copyright violations outright.

“Aren’t you sending these notices to avoid liability?” Justice Amy Coney Barrett, a Donald Trump appointee, asked, referring to infringement notices Cox sends to users. “You would have no liability risk if you win going forward.”

Barrett’s concerns were echoed across the bench. Justice Ketanji Brown Jackson, a Joe Biden appointee, worried that Cox’s arguments would undermine Congress’ intent in the DMCA. And Justice Sonia Sotomayor, a Barack Obama appointee, said that Cox was in this position because of its indifference to any consequences for such infringements.

“There are things you could have done to respond to those infringers and the end result might have been cutting off their connections, but … you did nothing, and, in fact, counselor, [Cox’s] sort of laissez faire attitude towards [Sony] is probably what got the jury upset,” Sotomayor said.

A jury found Cox liable for copyright infringement on over 10,000 works, awarding Sony a total of $1 billion in damages.

Even without economic liability, Cox claimed that its status as a good corporate citizen was adequate incentive to mitigate infringement activity.

“But, as I understand your argument, it could be the worst corporate citizen of all time and still it doesn’t matter that there would be no liability,” said Justice Elena Kagan, an Obama appointee. “Is that right?”

“That’s correct,” Rosenkranz replied.

Sony argued that the standard for secondary liability — the term for holding third parties liable for users’ actions — should rest on intent. Clement said that would require ISPs to know that providing the service to that customer will make infringement substantially certain.

Justice Samuel Alito, a George W. Bush appointee, said that Sony’s arguments seemed unworkable, threatening universal internet access.

“The ISP tells the university, ‘Look, a lot of your 50,000 students are infringing my copyright, do something about it.’ Now, the university then has to try to determine which particular students are engaging in this activity,” Alito said. “Let’s assume it can even do that, and so then it knocks out a thousand students. And then another thousand students are going to pop up doing the same thing.”

Sony claimed that Alito’s hypothetical wasn’t applicable in the real world, saying that universities and other places with public Wi-Fi weren’t being targeted for copyright infringement.

“It seems like you’re asking us to rely on your good corporate citizen(ship) too, that you wouldn’t go after the university or the hospital, or that sort of thing,” Barrett countered.

Justices Neil Gorsuch and Brett Kavanaugh, both Trump appointees, seemed to think the high court needed more from its neighbor across the street before weighing in on secondary liability.

“Congress has not enacted a statute here for secondary liability … Why shouldn’t that be a kind of tiebreaker here of letting Congress solve the issues that you’re raising?” Kavanaugh asked.

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