Broadband Industry Warns SCOTUS of 'Dire Consequences' From 4th Circuit Piracy Decision
Broadband interests are warning the U.S. Supreme Court of "dire consequences for internet access" if the 4th U.S. Circuit Court of Appeals' ruling in online piracy litigation against Cox Communications stands. Cox also saw support from the U.S. Solicitor General, tech giants, law professors and library groups in docket 24-171 amicus briefs posted Friday. The cable ISP is challenging the 4th Circuit decision upholding a lower court's copyright infringement finding against Cox for piracy by some of its internet subscribers (see 2408160034).
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The 4th Circuit adopted an "extreme, novel form" of contributory copyright infringement, said the Common Sense Copyright Coalition, which is spearheaded by USTelecom, along with ACA Connects, CTIA, the Internet Infrastructure Coalition, NTCA and WTA. They said the court then compounded that error by subjecting all secondary infringers to quintuple statutory damages "under an erroneous, watered-down willfulness standard." The end result "will be disastrous for Internet access, broadband deployment, and the digital economy," the groups said. Terminating internet access for subscribers based on "barebones, unverifiable notices that typically consist of little more than a timestamp and an IP address ... would be unworkable and chaotic."
The 4th Circuit decision "imperils public access to the internet," said Altice USA, AT&T, Charter Communications, Frontier Communications, Lumen, T-Mobile and Verizon. The ISPs said the appellate court's liability rule "misappl[ies] this Court’s copyright precedents [and] upend[s] the traditional common-law principles those precedents reflect."
The evidence shows Cox was at most indifferent to its subscribers' piracy, so the 4th Circuit judgment upholding Cox liability should be reversed, the Solicitor General said. The appellate court also erred with a jury instruction that let the jury find Cox had willfully infringed if it knew about its subscribers' infringement, the government said. That instruction "is incompatible with the ordinary understanding of willfulness, and it risks making enhanced damages the norm in contributory copyright infringement suits."
Google, Amazon, Microsoft, Mozilla and Pinterest said that as online intermediaries, they often are targeted by contributory infringement claims instead of going after the actual direct infringers with far shallower pockets. They warned that the 4th Circuit's "overbroad" contributory infringement liability standard will grease the path to more suits based solely on a provider's failure to act. "Such suits will significantly diminish the vitality of the internet economy."
The Electronic Frontier Foundation, American Library Association, Association of Research Libraries and copyright coalition Re:Create echoed that view. Adopting the music label plaintiffs' take on copyright contributory liability "would likely cause ISPs to terminate their customers’ internet access upon the flimsiest of accusations," since they "would face billion-dollar statutory damages awards if they didn’t do so."
EFF and the others argued that while the Copyright Act doesn't even define contributory liability, the Patent Act does. Applying patent laws to determine secondary liability in copyright makes it impossible to find there was contributory liability for providing internet access, they said, since that service is used overwhelmingly for non-infringing purposes. Since ISPs don’t advertise or instruct customers to use their internet access for infringement, it eliminates any possible liability for active inducement, the groups said.
American University patent law professor Charles Duan said that while the Cox litigation isn't a patent case, "patent law is crucial to it." He pointed to the link between copyright's contributory infringement doctrine and the parallel doctrine of inducing patent infringement. Issuing a properly limited standard for material contribution "will require consideration of not just copyright law, but patent law as well."
The 4th Circuit fundamentally misunderstood Cox's role as a conduit ISP, said copyright law professors Christopher Cotropia of George Washington University and James Gibson of the University of Richmond. The court "collapsed the crucial legal distinction between [passive] conduits and hosts, extending contributory liability into an area where no court or legislature has ever placed it."
Cotropia and Gibson said the 4th Circuit decision also "risks destabilizing copyright law by vastly expanding secondary liability without clear doctrinal or practical limits." They urged SCOTUS to reaffirm that conduits don't contribute to infringement when their provided internet access lacks any inducement or other affirmative conduct.
Social media platform X said the 4th Circuit conclusion that a company’s inaction can support a big contributory liability award runs contrary to SCOTUS' Taamneh decision, "which requires 'affirmative and culpable' participation in the underlying misconduct." Public Knowledge said that under common law, ISPs don't meet any element of primary or secondary liability. Contributory liability needs specific knowledge "and purposeful facilitation, not generalized awareness of third-party suspicion."