• by Wendy Davis  @wendyndavis, August 15, 2024

The internet service provider Cox Communications on Thursday asked the Supreme Court to intervene in a battle with music companies over illegal downloads by broadband subscribers.

Cox argues in its petition that the 4th Circuit Court of Appeals wrongly ruled that the company contributed to copyright infringement based on its failure to terminate service to subscribers who allegedly downloaded music unlawfully.

That ruling could result in mass disconnections, Cox says.

“This is an emergency,” Cox writes. “Without this court’s intervention, the Fourth Circuit’s ruling threatens mass evictions from the internet, severing millions from an essential conduit to engagement with modern society.

Cox's petition marks the latest development in a legal battle that began in 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 steps 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, which set aside the finding that Cox regarding vicarious infringement, but ruled against the company on the contributory infringement claim.

The judges wrote there was enough evidence to support the conclusions that Cox “knew of specific instances of copyright infringement,” traced the infringement to specific users, and continued to provide service “despite believing the online infringement would continue because it wanted to avoid losing revenue.”

The appellate judges 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.

Cox notes in its petition that the music companies' notices regarding piracy identified IP addresses associated with downloads -- and not individual users. Some of those IP addresses were for households, but others were for institutions like hospitals and universities.

“The only way Cox could have avoided liability was by terminating ... internet connections,” the company writes. “That means terminating entire households, coffee shops, hospitals, universities, and even regional internet service providers.”

The company says that holding internet service providers liable for failing to disconnect IP addresses associated with infringement “will have dangerous and drastic consequences.”

“Grandma will be thrown off the internet because Junior visited and illegally downloaded songs,” Cox writes. “An entire dorm or corporation will lose internet because a couple of residents or customers infringed.”

Cox adds: “Even with respect to individuals who did, in fact, infringe, loss of internet access is very heavy punishment for illegally downloading two songs.”