As the landmark copyright case against Cox Communications heads to the Supreme Court, an unprecedented coalition of technology giants including Google, Amazon, Microsoft, Mozilla, and Pinterest has filed an amicus brief warning of far-reaching consequences should the $1 billion verdict be upheld.
The case centers on whether Cox’s failure to terminate customer accounts after receiving piracy notices constitutes contributory copyright infringement, a ruling that could fundamentally alter how internet service providers operate.
The landmark case threatens to transform ISPs from neutral information conduits into copyright enforcement agents.
The Fourth Circuit Court upheld the massive damages award in 2021, prompting intervention from not only tech companies but also the U.S. government itself. The Department of Justice, through the Office of the Solicitor General, has argued that the lower court misapplied copyright law, highlighting the case’s significance for telecommunications policy nationwide.
At issue is the interpretation of what constitutes “conscious, culpable conduct” necessary for contributory infringement liability. Tech companies contend that the Digital Millennium Copyright Act‘s safe harbor provisions were designed to shield service providers, not create new avenues for liability. The coalition’s brief explicitly argues that the Fourth Circuit’s decision creates overbroad and unpredictable liability rules that threaten all online service providers.
The current interpretation could subject ISPs to statutory damages of up to $150,000 per infringed work, potentially creating astronomical financial exposure. Music industry collecting societies like ASCAP and BMI have traditionally managed royalty distributions for copyright holders, but this case potentially shifts enforcement responsibilities to ISPs themselves.
Consumer advocates and broadband providers have joined forces to warn that upholding the verdict would force ISPs to disconnect users based on mere accusations of infringement. The Copia Institute has highlighted what they term as the Packingham problem, referencing concerns about excessive penalties for internet disconnection. This poses particular problems for IP addresses representing multiple users, such as schools, hospitals, and cloud services, where innocent parties could lose essential internet access.
“Internet access is now fundamental to participation in society,” noted one filing from the Re:Create coalition, which emphasized the need for cautious expansion of liability standards.
The Supreme Court’s decision will determine whether service providers must become active copyright enforcers or remain neutral conduits for information.
The case represents a pivotal moment for internet policy, as the Court must balance copyright protection against maintaining open access principles that have defined the internet’s development. Musicians and creators who rely on sync deals for income may find themselves caught between protecting their works and preserving the digital ecosystem that enables their distribution.
Oral arguments are expected later this term, with a decision likely by mid-2023.
