The EFF’s senior staff attorney and their legal intern are warning that a bad copyright decision by a district court judge could lead many Americans to lose their internet access.
“In going after ISPs for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the internet based on mere accusations of copyright infringement.”
When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business’s account after a small number of accusations — perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered.
If not overturned, this decision will lead to an untold number of people losing vital internet access as ISPs start to cut off more and more customers to avoid massive damages…
The district court agreed with Sony that Cox is responsible when its subscribers — home and business internet users — infringe the copyright in music recordings by sharing them on peer-to-peer networks. It effectively found that Cox didn’t terminate accounts of supposedly infringing subscribers aggressively enough. An earlier lawsuit found that Cox wasn’t protected by the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions that protect certain internet intermediaries, including ISPs, if they comply with the DMCA’s requirements. One of those requirements is implementing a policy of terminating “subscribers and account holders… who are repeat infringers” in “appropriate circumstances.” The court ruled in that earlier case that Cox didn’t terminate enough customers who had been accused of infringement by the music companies.
In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages — by far the largest amount ever awarded in a copyright case.
The District Court got the law wrong… An ISP can be contributorily liable if it knew that a customer infringed on someone else’s copyright but didn’t take “simple measures” available to it to stop further infringement. Judge O’Grady’s jury instructions wrongly implied that because Cox didn’t terminate infringing users’ accounts, it failed to take “simple measures.” But the law doesn’t require ISPs to terminate accounts to avoid liability. The district court improperly imported a termination requirement from the DMCA’s safe harbor provision (which was already knocked out earlier in the case). In fact, the steps Cox took short of termination actually stopped most copyright infringement — a fact the district court simply ignored.
The district court also got it wrong on vicarious liability… [T]he court decided that because Cox could terminate accounts accused of copyright infringement, it had the ability to supervise those accounts. But that’s not how other courts have ruled. For example, the Ninth Circuit decided in 2019 that Zillow was not responsible when some of its users uploaded copyrighted photos to real estate listings, even though Zillow could have terminated those users’ accounts. In reality, ISPs don’t supervise the Internet activity of their users. That would require a level of surveillance and control that users won’t tolerate, and that EFF fights against every day.
The consequence of getting the law wrong on secondary liability here, combined with the $1 billion damage award, is that ISPs will terminate accounts more frequently to avoid massive damages, and cut many more people off from the internet than is necessary to actually address copyright infringement…
They also argue that the termination of accounts is “overly harsh in the case of most copyright infringers” — especially in a country where millions have only one choice for broadband internet access. “Being effectively cut off from society when an ISP terminates your account is excessive, given the actual costs of non-commercial copyright infringement to large corporations like Sony Music.”
It’s clear that Judge O’Grady misunderstood the impact of losing Internet access. In a hearing on Cox’s earlier infringement case in 2015, he called concerns about losing access “completely hysterical,” and compared them to “my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework.”