Cox to SCOTUS: 4th Circuit Is Flouting Precedent in Piracy Decision
Cox Communications didn't do anything affirmative to further online piracy by its broadband subscribers, and holding it liable for contributory copyright infringement flouts decades of U.S. Supreme Court case law, the cable ISP told SCOTUS on Friday. In a docket 24-171 petitioners' brief, Cox said the 4th U.S. Circuit Court of Appeals "defies common law and common sense" in its finding that ISPs are liable when they continue offering service after getting notifications accusing an unknown user of infringing copyright. Cox is challenging the 4th Circuit upholding a lower court's copyright infringement finding against Cox for piracy by some of its internet subscribers (see 2408160034).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
ISPs no more purposefully participate in subscribers' online activity "than your phone company or FedEx do in communications they transmit," Cox said. It said the 4th Circuit's willfulness standard is wrong, as willfulness must be based on the idea the defendant knew its own conduct was illegal. No court has recognized any duty of ISPs to end service for customers for alleged infringement, it added. "If allowed to stand, the Fourth Circuit’s one-two punch will yield mass evictions from the internet."
When it took up Cox's cert petition, SCOTUS also denied a related cert petition by the music label plaintiffs suing Cox concerning a circuit court split over how a defendant must benefit from direct copyright infringement to be vicariously liable.