• by Wendy Davis , Yesterday

The Supreme Court should uphold a lower court's decision that Cox Communications contributed to copyright infringement by failing to take action against alleged file-sharers, the Motion Picture Association, Authors Guild, former lawmakers and others argue in papers filed this week.

Cox's "deliberate decisions to protect the revenue it received from infringing subscribers, while ignoring infringement claims" show that it intended "to foster and profit from infringement," the Authors Guild argues in a friend-of-the-court brief submitted Wednesday to the Supreme Court.

The Authors Guild and others are weighing in on a legal dispute that began in 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 company 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.

The 4th Circuit said in its ruling that the liability verdict was supported by evidence "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."

Cox is now appealing to the Supreme Court. The company argues that it merely provides "communications infrastructure to the general public," and isn't responsible for subscribers' activity.

The broadband provider added that 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.

Sony and other music companies countered in papers filed earlier this month 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 write in a brief asking the Supreme Court to affirm the 4th Circuit's ruling.

Groups representing the movie industry, authors other copyright holders are likewise asking the court to uphold the lower court decision.

The Motion Picture Association writes that Cox's argument "threatens profoundly destabilizing consequences for cooperative efforts by copyright owners and service providers to address the scourge of online copyright infringement."

Ex-lawmakers and other former government officials, including former Senator Patrick Leahy and former Representative Bob Goodlatte, add in a separate friend-of-the-court brief that accepting Cox's argument "would effectively eliminate service provider exposure to liability for the vast majority of online infringements."

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

"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 urging the Supreme Court to reverse the lower court's decision.

The Supreme Court is expected to hear oral arguments on December 1.