The Supreme Court has agreed to hear a case that will determine if ISPs are required to terminate broadband service for customers who are accused of copyright violations. The suit is a result of a longstanding dispute between Cox Communications and music labels, including Sony Music Entertainment.
The Supreme Court case stems from a series of court cases that ended with the Fourth Circuit Court of Appeals ruling against Cox. The case was accepted by the Supreme Court since the ruling conflicts with some aspects of similar cases in the Second and Ninth Circuit Courts.
The case originated with a 2019 decision by a Virginia Court that found Cox liable for both contributory and vicarious copyright infringement and awarded the record companies 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.
This was still a troublesome ruling for ISPs because even after getting rid of the damage penalty, Cox still stands in violation of contributory damages over actions taken by its customers. The record labels insist that Cox should permanently disconnect any customer who engages in repeated copyright infringement. This ruling would turn 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, books, and pirated sports events.
This is an incredibly uncomfortable role for ISPs. ISPs don’t monitor customer usage because that would mean looking closely at everything that customers do. Instead, the music companies want Cox and other ISPs to react to complaints made by copyright holders. That might make sense in a perfect world, but the real world isn’t perfect. Complaints are rarely made to ISPs by copyright holders, and there is an entire industry of companies that make a living by issuing takedown requests for infringements of copyrighted 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 permanently disconnect paying customers. This would also be devastating for broadband customers. Most homes in the U.S. don’t feel that they have broadband choice, and most have access to only one fast ISP. If they lose that connection, they could find themselves cut off from functional broadband. It’s not hard to imagine a scenario where a teenager or visitors to a home violate copyrights and get the household disconnected from broadband. Losing broadband is a severe penalty for an infraction that would incur only a small fine if taken to court. The right penalty is to force people who infringe copyrights to pay a fine. Copyright holders are asking to bypass the law enforcement and court system, and want to turn ISPs into the judge, jury, and executioner for copyright violations.
ISPs need to keep an eye on this case and should have associations file comments in the court proceeding. A ruling against Cox is a ruling against every ISP. I assume consumer advocates will also weigh in with briefs since the penalty of permanently losing broadband doesn’t fit the crime.
This situation transcends the clear concern of Internet policing and dangerously veers into the domain of adjudication. Are ISPs truly equipped, or even authorized, to unilaterally determine jurisdictional authority over alleged infringements? If a complaint is merely well-formatted and frequently submitted, should an ISP automatically deem it verified and disconnect users? Or, does this new expectation now burden ISPs with identifying complainants, validating their authority, demanding conclusive evidence of infringement, and establishing a due process for customers to defend themselves?
Such responsibilities, in my view, vastly exceed the proper purview of an ISP. When criminal concerns arise, ISPs are rightly served with official subpoenas to comply with enforcement under CALEA. It is perplexing why these other issues would be subjected to no such limitations or control systems.
I agree with you 100%. If us ISP’s are required to police this stuff then I’d like to see the road department in each state required to stop all criminals using the roads for their nefarious behavior, the utility companies need to cut off power delivery to any address engaging in illegal behavior, and car dealers should be held responsible for any car they sell to an individual that uses it for any illegal activity.
absolutely. This whole process is a clear and obvious violation of due process. conviction on accusation is a violation of core american legal standards.
I’m not even sure I’d say any ‘discovery’ is reasonable. The supreme court has already determined that an IP address isn’t strongly linked to an individual and so isn’t grounds for conviction. What else could an ISP possibly do here other than confirm the service address of an IP address at the time of the complaint?
If the IP address isn’t enough for conviction, then what is the purpose of burdening an ISP with constant and continuous monitoring?
Extending the CALEA model to allow for court ordered data collection seems reasonable, that fits within due process and allows for legitimate investigation while outright denying the ‘conviction by accusation’ model currently being pushed.
ISPs should not be held to any duty other than reasonable discovery compliance for copyright litigation. Consider the pre digital days. If someone photocopied a book and distributed as their own via the mails, it wouldn’t make sense to require the U.S. Postal Service to disallow mailing of any materials from the alleged violator.