There is a long-running legal case that could have dire consequences on broadband households. The case started in 2018 when a group of major record labels sued Cox Communications over its policies related to copyrights. The labels accused Cox of refusing to disconnect customers who repeatedly broke copyright rules by downloading music without paying for it.

In 2019, a court in Virginia found Cox liable for both contributory and vicarious copyright infringement and awarded the music labels an astounding $1 billion in damages. Cox appealed, and the Fourth Circuit U.S. Court of Appeals reversed the charges for vicarious infringement and vacated the $1 billion of damages. There will be a new trial to reassess the size of the damage award.

The troubling part of the legal ruling is that, even after appeal, Cox still stands in violation of contributory damages over actions taken by its customers. That’s a ruling that should concern every ISP – and every Internet user.

The record labels are insisting Cox should have permanently disconnected any customer who engaged in repeated copyright infringement. This ruling turns ISPs into Internet policemen who must monitor and punish customers who engage in copyright infringement. That doesn’t just mean people who download copies of music but also movies, games, and books. It means that in order to avoid having to pay big damages, ISPs might cut off customers for watching a pirated sporting event.

This is an incredibly uncomfortable role for ISPs. ISPs are not going to monitor everything their customers do, but will instead react to complaints made by copyright holders. Complaints are rarely made directly by those holding copyrights, and there is an entire industry of companies that make a living by issuing take-down requests for infringements of copyrighted materials. Social media companies are inundated with these take-down requests every day to remove posts that link to copyrighted music, movies, and other materials. The music companies expect ISPs to cut off subscribers after only a few violations of copyright. ISPs are in the business of selling broadband connections, and the last thing they want to do is to disconnect paying customers.

This could be devastating for broadband customers. Most homes in the U.S. don’t feel that they have broadband choice and only have access to one fast ISP. If they lose that connection, they could find themselves cut off from functional broadband.

It’s easy to believe that customers who get cut off for such violations deserve it. But the process is completely one-sided and there is no appeal for a broadband customer that they were unjustly accused of bad behavior. They can be cut off without appeal or recourse. Any home with teenagers will have to worry that their teens don’t download copies of games, movies, or music. People could hit a link on social media that downloads copyrighted material without even realizing they did something wrong. Such downloads could be done on a cellphone that is using a home’s WiFi – and the bad behavior doesn’t even have to be done by a family member.

This is a case where the punishment does not fit the crime. Rather than directly pursuing people who download pirated copyrighted material through a legal process, copyright holders want ISPs to act as judge, jury, and executioner and unilaterally punish customers by taking away their Internet access.

There are numerous surveys since the pandemic that show that a large majority of people now consider a broadband connection to be essential. All of the surveys my consulting business has done in the last year show that half or more of homes now have somebody working from home using broadband at least part-time every week, and we routinely find 10% to 15% of homes with somebody working at home full time. We now use broadband for a wide variety of essential activities such as shopping, banking, hunting for a job, and connecting with a doctor.

While the courts vacated the billion-dollar penalty against Cox, ISPs are all going to notice if the Appeal Courts still imposes a sizable penalty during the rehearing of the damages. Losing an essential broadband connection because teens, roommates, or visitors violated copyright laws seems like an extreme penalty. If ISPs start cutting customers dead for violating copyrights, I have to imagine that people are going to be a lot more cautious against giving visitors or even family members the WiFi password.

Like many other problems in the industry, the only real fix for this is to have Congress update or replace the Digital Millennium Copyright Act (DMCA), which was adopted in the 1990s when we were all still using dial-up access.