• by Wendy Davis , Yesterday

Broadband provider Cox Communications is warning of "mass evictions" from the internet, unless the Supreme Court reverses a lower court's decision holding the company liable for illegal music downloads by subscribers.

In papers filed late last week, Cox argues that the music companies are effectively advocating for a "two-notices-and-terminate" system that would require broadband providers to disconnect subscribers who have been accused of infringement on two occasions, or else face liability.

That "notice-and-terminate regime would have seismic and dangerous ramifications," Cox writes, adding that one of those consequences would be widespread disconnections from the internet.

"Only Congress has the power to impose a framework with such vast national implications," the broadband provider adds.

Cox's latest argument is a battle dating to 2018, when it was sued by Sony Music Entertainment and other music companies for allegedly facilitating piracy by failing to disconnect alleged file-sharers. 

The music companies claimed they sent “hundreds of thousands” of notifications about piracy to Cox, and that the company failed to 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.

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 countered 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.

Sony and the others said in their brief that the approximately 10,000 pieces of music at issue were downloaded or shared by subscribers who "generated at least three infringement notices across 2013 and 2014."

Cox now points to that statement as proof that the music labels want to force broadband providers to disconnect subscribers after they have been accused twice.

"When plaintiffs refer to 'habitual offenders,' they mean any subscriber who has received two notices of infringement," the broadband provider argues.

Cox says in its brief that it "has no fondness for copyright infringement," but "resists a rule that treats [internet service providers' as the world’s internet police and imposes crushing liability whenever strangers lob unverifiable accusations of customer wrongdoing."

The company adds that upholding the lower court ruling will "inevitably" lead to "mass evictions."

The Trump administration has sided with Cox in the battle, 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 with the court.

The Supreme Court will hear oral arguments on December 1.