There was another interesting court decision involving Cox. The U.S. Court of Appeals for the Ninth Circuit ruled that ISPs can’t be served subpoenas related to some portions of the Digital Millennium Copyright Act (DMCA).

The lawsuit arose from a subpoena issued to Cox by Capstone Studios concerning the movie Fall. Capstone had identified 29 Cox subscribers that it said had pirated a copy of the movie using BitTorrent. Cox notified its customers and asked them if they wanted to respond to the court, and one subscriber did. The subscriber claimed that they had an open WiFi connection and that somebody else must have downloaded the movie using their bandwidth. The U.S. District Court of Hawaii ruled that Cox qualified for the conduit safe harbor since Cox only provided the Internet connection and had no role or obligations in the transaction of downloading the movie.

The DMCA rules are key to protecting Internet service providers from being prosecuted for the information that passes through their platform at the request of users. The four safe harbors include:

• The conduit safe harbor is the one evoked by the Court for Cox. This says that online service providers have no obligations under DMCA if they only temporarily store user data for the purpose of transmission. ISPs like Cox don’t look to see what customers are transmitting on their networks.
• The system caching safe harbor says service providers have no liability if they cache data at the request of others to speed access to users or reduce traffic on the Internet.
• The information safe harbor protects service providers if they store information on their platforms at the direction of users.
• The information location tools safe harbor protects service providers from liability if their site includes search engines, directories, or hyperlinks that might send users to infringing materials.

Capstone appealed the ruling to the Appeals Court. The Ninth District agreed with the lower court and ruled that ISPs are only conduits for the data sent over their networks and that Cox hadn’t taken any actions that demonstrated that it had a role in pirating the movie. The Ninth Circuit went further than the District Court and said that the original subpoena was invalid since Cox only acted as an ISP and was not a party to the action of pirating the movie.

This is good news for ISPs since they clearly have no idea how customers are using their broadband connection. The Internet would come to a screeching halt if ISPs were held liable for actions taken by subscribers. Most ISPs have terms of service that allow them to disconnect customers who engage in bad behavior on the Internet, but ISPs only hear about that behavior from third parties.

This case is tangentially related to another case involving Cox that was recently accepted by the U.S. Supreme Court. That case involves a longstanding dispute between Cox and music labels. The case originated with a 2019 decision by a Virginia Court that found Cox liable for both contributory and vicarious copyright infringement for actions taken by its customers and awarded the record companies an astounding $1 billion in damages.

Even after an Appeals Court reversed the fine, Cox is still in violation of contributory damages over actions taken by its customers. The record labels want Cox to permanently disconnect any customer who engages in repeated copyright infringement. If that ruling holds, it would turn ISPs into Internet policemen who must monitor and punish customers who engage in copyright infringement for music, movies, games, books, and sports events.