• by Wendy Davis , Yesterday

Siding against record companies, the Supreme Court unanimously ruled Wednesday that Cox Communications was not liable for copyright infringement by subscribers who unlawfully downloaded music.

"Under our precedents, a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights," Justice Clarence Thomas wrote in an opinion joined by six of his colleagues.

"The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement," he added, noting that in 1984 the court ruled that Betamax was not liable for infringement, even though its devices could be used to record and then unlawfully sell copyrighted programs.

Justices Sonia Sotomayor and Ketanji Brown Jackson agreed that Cox was not liable, but issued a separate opinion.

The decision is a blow to music companies, which have sued several internet service providers -- including Cox, Verizon and Charter -- over file-sharing by subscribers.

Mitch Glazier, chairman and CEO of the Recording Industry of America, expressed disappointment in the decision.

"To be effective, copyright law must protect creators and markets from harmful infringement and policymakers should look closely at the impact of this ruling," he stated Wednesday.

Wednesday's ruling brings an end to a dispute dating to 2018, when Sony Music Entertainment and other music companies sued Cox for allegedly facilitating piracy.

The music companies claimed they sent “hundreds of thousands” of notifications about piracy to Cox, and that it failed to terminate repeat offenders.

In December 2019, a jury found Cox liable for infringement based and ordered it to pay $1 billion.

The jury found liability based on two legal theories. One was that decided that Cox “vicariously” infringed copyright -- 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 appealed to the 4th Circuit Court of Appeals, which set aside the finding for "vicarious" infringement but upheld the finding of contributory infringement, and sent the case back to the trial judge for a new hearing to assess damages on that claim.

Cox then appealed to the Supreme Court, arguing that internet service providers like itself merely provide "communications infrastructure to the general public," and aren't responsible for subscribers' activity.

Cox also said it disconnected some subscribers after receiving notices of 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.

At a Supreme Court hearing in December, Cox attorney Josh Rosenkranz told the justices that "turning internet providers into internet police ... will wreak havoc with the essential medium through which modern public engages in commerce and speech."

The Trump administration 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.

The music companies countered that the verdict against Cox should stand, arguing that the company "continued to provide known infringers with something it knew could be used to infringe."

Former U.S. Solicitor General Paul Clement, who represented record companies, said at the December hearing it was "beyond dispute that Cox provided the service to known infringers with substantial knowledge that what they themselves called habitual abusers would continue to infringe."

Justice Samuel Alito Cox asked Clement how internet service providers should respond to allegations that a university's broadband system was used for infringement.

He answered that "a lot" of hotels -- a subject he said he knew better than universities -- don't offer internet service at speeds high enough for peer-to-peer downloading.

Alito then asked if universities should do the same, prompting this response from Clement: "I don't think it would be the end of the world if universities provided service at a speed that was sufficient for most other purposes but didn't allow the students to take full advantage of BitTorrent. I could live in that world."

The dispute drew interest from a host of outside organizations, with the Motion Picture Association and Authors Guild siding against Cox, and tech companies and digital rights groups siding with the internet service provider.

Public Knowledge, which was among the groups backing Cox, praised the court's ruling. The organization, like other digital rights groups, has long argued that internet service providers shouldn't be required to disconnect users based on mere allegations of infringement.

"Internet access is necessary to participate in modern society," Meredith Rose, Public Knowledge senior policy counsel, stated.

"Today’s decision laid to rest the idea that private actors -- and not just any private actors, but record labels -- can determine when customers deserve to be excluded from applying to jobs, paying bills, and getting an education."