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Broadband Providers Are Not Copyright Cops: Why the Sony v. Cox Case Threatens Internet Users

 |  March 20, 2024

By: John Bergmayer (Public Knowledge)

The enduring legal dispute between major record labels and internet service provider Cox Communications continues, with the rights of internet users hanging in the balance.

To recap, this legal saga commenced in 2018 when Sony Music Entertainment and other record labels filed a lawsuit against Cox, alleging the broadband provider’s liability for its customers’ copyright infringement. Cox had allegedly failed to terminate subscribers’ internet service despite claims from the music labels of copyright infringement by said subscribers.

In 2019, a Virginia court held Cox responsible for both contributory and vicarious infringement, awarding the labels an immense $1 billion in statutory damages. Cox appealed, resulting in a nuanced ruling from the U.S. Court of Appeals for the Fourth Circuit. While the court affirmed the finding of contributory infringement, it reversed the decision on vicarious infringement. Additionally, the court annulled the $1 billion damages award as unjustified, prompting a retrial on damages.

Although the rejection of vicarious liability and the nullification of the exorbitant damages may appear advantageous for Cox, concerns linger over the court’s approach to contributory liability. This approach could potentially compel ISPs to act as copyright enforcers, monitoring users and terminating internet access based solely on accusations of infringement. Such a scenario threatens to exacerbate the already pronounced digital divide and contradicts the notion that broadband is an essential service ISPs should provide on a nondiscriminatory basis as common carriers.

In today’s society, broadband has become an indispensable tool for daily life. As emphasized by the Supreme Court in Packingham v. North Carolina, the internet serves as a primary source for news, employment opportunities, public discourse, and accessing vast realms of human knowledge.

When the legal framework surrounding ISP liability was established in the late 1990s with the Digital Millennium Copyright Act (DMCA), the internet landscape was vastly different. E-commerce was nascent, social media was confined to message boards, and concepts like remote work, online education, and telemedicine were in their infancy. Unlike today, broadband infrastructure was limited, and dial-up connections were prevalent. Unlike ISPs today, telephone companies provided the infrastructure connecting households, without being held liable for subscriber activities. Today’s broadband ISPs occupy a similar role and face comparable challenges…