SCOTUS Seen Likely to Reverse 4th Circuit in ISP Piracy Litigation

The general assumption is that SCOTUS grants cert when it thinks a lower court got it wrong, emailed Eric Goldman, co-director of Santa Clara University's High Tech Law Institute. It's reinforced in this case by the court refusing cert on the vicarious copyright infringement appeal brought by the music labels (see 2506300016), Goldman added. That suggests the justices think the 4th Circuit "got it right in denying that claim and were willing to leave it in place."

Goldman said SCOTUS' leanings will be clearer after oral arguments in the case, when there might be signs whether the justices are skeptical of the 4th Circuit ruling. He said he hopes SCOTUS ultimately does reverse it, as imposing contributory copyright infringement liability on internet access providers for user-caused copyright infringement puts those companies "in a no-win position that poses existential threats" to the industry. Oral argument is set for Dec. 1 (see 2510170040).

Mike Carroll, faculty co-director of American University's program on information justice and intellectual property, said in an email that Congress has largely left it to the courts to develop the law of secondary liability for copyright infringement, and SCOTUS has addressed the issue only twice, leaving many questions unanswered. This case asks whether Cox made a “material contribution” to the users’ infringing conduct by not terminating their accounts after learning about those actions, Carroll said. "Usually, the choice not to do something is not a basis for secondary liability, but in this case it might be."

SCOTUS "had been ducking a lot of questions about the liability of social media platforms for their users’ conduct for years," Carroll added, but now it's starting to answer these questions in different areas of law, such as free speech. "It will be interesting to see if the Court’s more general reasoning about why social media platforms were not liable for aiding and abetting terrorism in the cases involving ISIS videos posted to social media will apply in the copyright context."

The music label respondents told SCOTUS on Monday that Cox wrongly portrays the copyright infringement litigation as being about whether providing a general-purpose service triggers secondary liability when Cox knows some users may misuse it. "No one thinks that merely providing goods or services capable of infringing uses constitutes contributory liability," they said in a brief (docket 24-171). But the law is clear that a supplier does become liable for supplying a service to an identified serial infringer, knowing they will likely keep using it to infringe, they said. The labels said Cox is ignoring a U.S. District Court's unchallenged holding that the three or more infringement notices it received for each subscriber in question were enough to establish that Cox knew each was likely to infringe again.

In a brief last week, Cox said there's no dispute that it didn't encourage anyone to infringe, such as by providing file-sharing software or instructions; that its terms of service prohibit infringement; or that its business model isn't built on infringement. "Imposing contributory liability in these circumstances flouts a century of this Court’s case law in the copyright context." The 4th Circuit holding that ISPs are liable "merely for continuing service after receiving automated notices accusing an unknown user at a home or business of infringing ... defies common law and common sense," Cox said.