• by Wendy Davis  @wendyndavis, March 28, 2024

Cox Communications plans to ask the Supreme Court to intervene in a battle with music companies over illegal downloads by broadband subscribers, according to court papers filed this week.

Specifically, Cox says it will seek to appeal a decision holding it responsible for “contributory” copyright infringement because it failed to disconnect subscribers who allegedly downloaded music without the owners' permission.

That ruling, issued last month by the 4th Circuit Court of Appeals, raises questions that are “exceptionally important to copyright defendants and the public,” Cox writes in its new papers.

Unless overturned, the decision will provide “powerful incentives” for broadband providers “to swiftly terminate internet services that have been used to infringe -- no matter the universe of lawful uses to which those services are put, or the consequences to innocent, non-infringing people who also use those services,” Cox adds.

Cox's new papers come in a battle dating to 2018, when Sony Music Entertainment and dozens of other music companies sued Cox for allegedly facilitating piracy. The music companies alleged that they sent “hundreds of thousands” of notifications about piracy to Cox, and that the company failed to terminate repeat offenders.

Sony and the others claimed Cox was responsible for users' piracy on two grounds. One was that Cox “vicariously” infringed -- essentially meaning Cox profited from infringement. The other was that Cox "contributed" to infringement -- meaning Cox knew its users infringed copyright and failed to take “reasonable measures” to prevent them from doing so.

Cox was found liable for infringement on both theories and, in December 2019, a jury awarded the music companies $1 billion in damages -- or nearly $100,000 per work for around 10,000 pieces of downloaded or shared music.

Cox appealed to the 4th Circuit, arguing that it neither caused users to infringe nor profited from infringement. 

A three-judge panel of the 4th Circuit sided with Cox regarding vicarious infringement, but ruled against the company on the contributory infringement claim.

The judges wrote there was enough evidence to support a finding “that Cox knew of specific instances of repeat copyright infringement occurring on its network, that Cox traced those instances to specific users, and that Cox chose to continue providing monthly internet access to those users despite believing the online infringement would continue because it wanted to avoid losing revenue.”

The judges also vacated the $1 billion damage award and sent the case back for a jury determination about damages for contributory infringement alone, as opposed to both contributory and vicarious infringement.

That ruling allows the jury to again award 10 figures in damages.

Earlier this month, Cox asked the 4th Circuit to reconsider its ruling, arguing that it shouldn't be held responsible for users' activity.

“The internet is not a hammer,” Cox wrote in its request. “Just as a telephone company is not liable for wire fraud when it does not cut off phone service to a notorious crime syndicate, an ISP is not liable for failing to cut the cord based on allegations of past infringement.”

The 4th Circuit rejected that request last week.

On Monday, Cox asked the appellate judges to stay their ruling for several reasons, including that it intends to ask the Supreme Court to review the decision. The same day Cox filed the request, the 4th Circuit agreed to temporarily stay the decision while it considers the matter.

Outside groups including the American Library Association, Public Knowledge and Electronic Frontier Foundation have sided with Cox in the dispute. Those groups argued in a recent friend-of-the-court brief that the panel's ruling will effectively force broadband providers “to terminate more subscribers with less justification to avoid staggering liability.”

“More aggressive termination policies would punish the innocent and guilty alike,” the groups write, adding that people in households and organizations share broadband subscriptions.

“The record shows many instances of alleged infringement associated with accounts for universities, hospitals, local government agencies, and, in the case of subcontracted services, entire municipalities,” the organizations wrote. “Cox was rightly hesitant to terminate accounts like these.”