• by Wendy Davis , Yesterday

Music companies are urging the Supreme Court to affirm a lower court decision holding Cox Communications responsible for users' copyright infringement based on its failure to disconnect subscribers accused of illegally downloading music.

"Cox made a deliberate and egregious decision to elevate its own profits over compliance with the law," Sony Music Entertainment and other companies argue in a brief filed Wednesday with the Supreme Court.

They add that the evidence in the case "established that Cox’s policy was to terminate virtually nobody, no matter how certain it was that the subscriber had used its service to infringe repeatedly and was likely to keep doing so."

Their papers come in a battle dating to 2018, when Sony and other music companies sued Cox for facilitating piracy. The music companies claimed they sent “hundreds of thousands” of notifications about piracy to Cox, and that the company did not terminate repeat offenders.

Cox was found liable and, in late 2019, a jury ordered the broadband provider to pay $1 billion to the record companies -- or nearly $100,000 per work for around 10,000 pieces of downloaded or shared music.

The internet service provider appealed to the 4th Circuit Court of Appeals, which upheld a finding that the company contributed to copyright infringement by failing to disconnect alleged file-sharers, but returned the matter to the trial court for a new trial on damages.

Cox is now appealing to the Supreme Court. The broadband provider argued in papers filed in August that it merely provides "communications infrastructure to the general public," and isn't responsible for subscribers' activity.

The company also said it disconnected some subscribers after receiving notices regarding alleged copyright infringement, but that many of the most frequently accused accounts were regional internet service providers, university housing, military barracks and multi-unit dwellings.

In those cases, "termination would have meant throwing innocent users off the internet en masse," Cox wrote.

The music companies counter that the jury verdict was supported by the evidence, arguing that Cox "continued to provide known infringers with something it knew could be used to infringe" and expected that subscribers would continue to illegally download music.

"Cox did so because it did not want to lose the revenue that serving those infringers generated, even though Cox knew that it came at the expense of copyright holders," the music companies argue.

The Trump administration previously weighed in on Cox's side, arguing to the Supreme Court that companies are only liable for contributing to copyright infringement if they intend for their product to be used unlawfully, or encourage people to infringe.

"In this case, the evidence demonstrated at most that Cox was indifferent to its subscribers’ infringement, not that Cox intended to participate in that infringement or wished to bring it about," U.S. Solicitor General John Sauer wrote in a brief filed last month. "The court of appeals’ judgment upholding Cox’s liability therefore should be reversed."

Outside groups -- including tech companies like Google and X Corp, digital rights advocates such as Public Knowledge and the Electronic Frontier Foundation, and organizations representing broadband carriers -- have weighed in on Cox's side.

For instance, groups including US Telecom--The Broadband Association and CTIA--The Wireless Association argued in a friend-of-the-court brief filed last month that the 4th Circuit decision "will be disastrous for Internet access, broadband deployment, and the digital economy."

Those organizations argued that the lower court ruling would expose internet service providers "to the risk of ten-figure judgments unless they terminate subscribers upon receipt of barebones, unverifiable notices that typically consist of little more than a timestamp and an IP address."