Submission + - ISPs tell Supreme Court they don't want to disconnect users accused of piracy (arstechnica.com)
Joe_Dragon writes: Sony v. Cox —
ISPs tell Supreme Court they don’t want to disconnect users accused of piracy
ISPs say Sony's win over Cox would force them to do "mass Internet evictions."
Jon Brodkin — 9/18/2024, 1:32 PM
The US Supreme Court building is seen on a sunny day. Kids mingle around a small pool on the grounds in front of the building.
Enlarge / The Supreme Court of the United States in Washington, DC, in May 2023.
Getty Images | NurPhoto
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Four more large Internet service providers told the US Supreme Court this week that ISPs shouldn't be forced to aggressively police copyright infringement on broadband networks.
While the ISPs worry about financial liability from lawsuits filed by major record labels and other copyright holders, they also argue that mass terminations of Internet users accused of piracy "would harm innocent people by depriving households, schools, hospitals, and businesses of Internet access." The legal question presented by the case "is exceptionally important to the future of the Internet," they wrote in a brief filed with the Supreme Court on Monday.
The amici curiae brief was filed by Altice USA (operator of the Optimum brand), frontier Communications, Lumen (aka CenturyLink), and Verizon. The brief supports cable firm Cox Communications' attempt to overturn its loss in a copyright infringement lawsuit brought by Sony. Cox petitioned the Supreme Court to take up the case last month.
Sony and other music copyright holders sued Cox in 2018, claiming it didn't adequately fight piracy on its network and failed to terminate repeat infringers. A US District Court jury in the Eastern District of Virginia ruled in December 2019 that Cox must pay $1 billion in damages to the major record labels.
Cox won a partial victory when the US Court of Appeals for the 4th Circuit vacated the $1 billion verdict, finding that Cox wasn't guilty of vicarious infringement because it did not profit directly from infringement committed by users of its cable broadband network. But the appeals court affirmed the jury's finding of willful contributory infringement and ordered a new damages trial.
Future of Internet at stake, ISPs say
The Altice/frontier/Lumen/Verizon brief said the 4th Circuit ruling "imperils the future of the Internet" by "expos[ing] Internet service providers to massive liability if they do not carry out mass Internet evictions." Cutting off a subscriber's service would hurt other residents in a home "who did not infringe and may have no connection to the infringer," they wrote.
The automated processes used by copyright holders to find infringement on peer-to-peer networks are "famously flawed," ISPs wrote. Despite that, the appeals court's "view of contributory infringement would force Internet service providers to cut off any subscriber after receiving allegations that some unknown person used the subscriber's connection for copyright infringement," the brief said.
Under the 4th Circuit's theory, "an Internet service provider acts culpably whenever it knowingly fails to stop some bad actor from exploiting its service," the brief said. According to the ISPs, this "would compel Internet service providers to engage in wide-scale terminations to avoid facing crippling damages, like the $1 billion judgment entered against Cox here, the $2.6 billion damages figure touted by these same plaintiffs in a recent suit against Verizon, or the similarly immense figures sought from frontier and Altice USA."
Potential liability for ISPs is up to $150,000 in statutory damages for each work that is infringed, the brief said. "Enterprising plaintiffs' lawyers could seek to hold Internet service providers liable for every bad act that occurs online," they wrote. This threat of financial liability detracts from the ISPs' attempts "to fulfill Congress's goal of connecting all Americans to the Internet," the ISPs said.
ISPs cite Twitter’s Supreme Court win
The ISPs' brief argues that the 4th Circuit decision conflicts with the Supreme Court's 2023 ruling in Twitter v. Taamneh, which rejected allegations that social media companies aided and abetted ISIS in a terrorist attack. ISPs wrote:
But the Fourth Circuit's rule runs roughshod over the traditional common-law limits on aiding-and-abetting liability. This Court recently clarified those principles in Twitter. That case addressed claims that Twitter and other social-media companies aided and abetted terrorism by knowingly failing to stop ISIS from using their platforms to raise funds and attract recruits. In assessing those claims, the Court invoked the same principles that have "animated aiding-and-abetting liability for centuries," searching for "conscious, voluntary, and culpable participation in another's wrongdoing." Under the common law, the Court stressed, "truly culpable conduct" exists when "the defendant consciously and culpably participated in a wrongful act so as to help make it succeed." The Court emphasized the need for such active wrongdoing more than a dozen times.
A communication provider's failure to stop bad actors from misusing its service does not qualify. Under the common law, this Court explained, "communication-providing services" have no "duty" "to terminate customers after discovering that the customers were using the service for illicit ends." For that reason, the Court held that the social-media companies' continued provision of routine communication service to terrorists was "mere passive nonfeasance" that did not amount to culpable aid. And in words that could have been written for this case, the Court explained that it "would run roughshod over the typical limits on tort liability and take aiding and abetting far beyond its essential culpability moorings" to hold a "communication provider" liable "merely for knowing that... wrongdoers were using its services and failing to stop them."
ISPs say they shouldn't be liable for copyright infringement because "aiding and abetting requires some act to support the wrongdoing—not mere knowledge that a customer is doing something wrong." Providing service to a customer is not the same as providing "substantial assistance" to a wrongdoer, they wrote.
"Providing routine services to a wrongdoer generally counts as substantial assistance only if done under 'unusual circumstances' or 'in an unusual way,'" ISPs wrote. ISPs claim the 4th Circuit "made the same errors this Court corrected in Twitter" when it "ruled that Cox materially contributed to its subscribers' infringement by knowingly failing to cut their Internet connections."
Sony wants to reinstate $1 billion verdict
Even if ISPs win their argument, copyright holders will still have the right to pursue claims of infringement directly against the infringers, the brief said. "They can still use any evidence they collect of online infringement to serve subpoenas to learn the identity of the customer whose Internet access was used for infringement," ISPs wrote. "The subpoenas can then lead to direct actions against the actual infringers."
Record labels say going after individuals is too difficult. Sony and other labels want the Supreme Court to reinstate the $1 billion verdict along with the jury's original finding that Cox was guilty of vicarious infringement.
"Vicarious liability is an especially important tool in the digital age where pursuing direct infringers—in this case, thousands of faceless individuals who cannot be identified except through an ISP like Respondent—is impractical at best and impossible at worst," record labels wrote in an August 16 petition to the Supreme Court.
Record labels say the case "is an ideal vehicle to resolve the scope of the profit requirement," given that the 4th Circuit decided record labels failed to prove that Cox profits directly from subscribers' infringement. "The facts that underpin the jury's profit finding—Cox's fees, its employees' emails, its advertising, and its network traffic—are not in dispute," they wrote.
ISPs tell Supreme Court they don’t want to disconnect users accused of piracy
ISPs say Sony's win over Cox would force them to do "mass Internet evictions."
Jon Brodkin — 9/18/2024, 1:32 PM
The US Supreme Court building is seen on a sunny day. Kids mingle around a small pool on the grounds in front of the building.
Enlarge / The Supreme Court of the United States in Washington, DC, in May 2023.
Getty Images | NurPhoto
86
Four more large Internet service providers told the US Supreme Court this week that ISPs shouldn't be forced to aggressively police copyright infringement on broadband networks.
While the ISPs worry about financial liability from lawsuits filed by major record labels and other copyright holders, they also argue that mass terminations of Internet users accused of piracy "would harm innocent people by depriving households, schools, hospitals, and businesses of Internet access." The legal question presented by the case "is exceptionally important to the future of the Internet," they wrote in a brief filed with the Supreme Court on Monday.
The amici curiae brief was filed by Altice USA (operator of the Optimum brand), frontier Communications, Lumen (aka CenturyLink), and Verizon. The brief supports cable firm Cox Communications' attempt to overturn its loss in a copyright infringement lawsuit brought by Sony. Cox petitioned the Supreme Court to take up the case last month.
Sony and other music copyright holders sued Cox in 2018, claiming it didn't adequately fight piracy on its network and failed to terminate repeat infringers. A US District Court jury in the Eastern District of Virginia ruled in December 2019 that Cox must pay $1 billion in damages to the major record labels.
Cox won a partial victory when the US Court of Appeals for the 4th Circuit vacated the $1 billion verdict, finding that Cox wasn't guilty of vicarious infringement because it did not profit directly from infringement committed by users of its cable broadband network. But the appeals court affirmed the jury's finding of willful contributory infringement and ordered a new damages trial.
Future of Internet at stake, ISPs say
The Altice/frontier/Lumen/Verizon brief said the 4th Circuit ruling "imperils the future of the Internet" by "expos[ing] Internet service providers to massive liability if they do not carry out mass Internet evictions." Cutting off a subscriber's service would hurt other residents in a home "who did not infringe and may have no connection to the infringer," they wrote.
The automated processes used by copyright holders to find infringement on peer-to-peer networks are "famously flawed," ISPs wrote. Despite that, the appeals court's "view of contributory infringement would force Internet service providers to cut off any subscriber after receiving allegations that some unknown person used the subscriber's connection for copyright infringement," the brief said.
Under the 4th Circuit's theory, "an Internet service provider acts culpably whenever it knowingly fails to stop some bad actor from exploiting its service," the brief said. According to the ISPs, this "would compel Internet service providers to engage in wide-scale terminations to avoid facing crippling damages, like the $1 billion judgment entered against Cox here, the $2.6 billion damages figure touted by these same plaintiffs in a recent suit against Verizon, or the similarly immense figures sought from frontier and Altice USA."
Potential liability for ISPs is up to $150,000 in statutory damages for each work that is infringed, the brief said. "Enterprising plaintiffs' lawyers could seek to hold Internet service providers liable for every bad act that occurs online," they wrote. This threat of financial liability detracts from the ISPs' attempts "to fulfill Congress's goal of connecting all Americans to the Internet," the ISPs said.
ISPs cite Twitter’s Supreme Court win
The ISPs' brief argues that the 4th Circuit decision conflicts with the Supreme Court's 2023 ruling in Twitter v. Taamneh, which rejected allegations that social media companies aided and abetted ISIS in a terrorist attack. ISPs wrote:
But the Fourth Circuit's rule runs roughshod over the traditional common-law limits on aiding-and-abetting liability. This Court recently clarified those principles in Twitter. That case addressed claims that Twitter and other social-media companies aided and abetted terrorism by knowingly failing to stop ISIS from using their platforms to raise funds and attract recruits. In assessing those claims, the Court invoked the same principles that have "animated aiding-and-abetting liability for centuries," searching for "conscious, voluntary, and culpable participation in another's wrongdoing." Under the common law, the Court stressed, "truly culpable conduct" exists when "the defendant consciously and culpably participated in a wrongful act so as to help make it succeed." The Court emphasized the need for such active wrongdoing more than a dozen times.
A communication provider's failure to stop bad actors from misusing its service does not qualify. Under the common law, this Court explained, "communication-providing services" have no "duty" "to terminate customers after discovering that the customers were using the service for illicit ends." For that reason, the Court held that the social-media companies' continued provision of routine communication service to terrorists was "mere passive nonfeasance" that did not amount to culpable aid. And in words that could have been written for this case, the Court explained that it "would run roughshod over the typical limits on tort liability and take aiding and abetting far beyond its essential culpability moorings" to hold a "communication provider" liable "merely for knowing that... wrongdoers were using its services and failing to stop them."
ISPs say they shouldn't be liable for copyright infringement because "aiding and abetting requires some act to support the wrongdoing—not mere knowledge that a customer is doing something wrong." Providing service to a customer is not the same as providing "substantial assistance" to a wrongdoer, they wrote.
"Providing routine services to a wrongdoer generally counts as substantial assistance only if done under 'unusual circumstances' or 'in an unusual way,'" ISPs wrote. ISPs claim the 4th Circuit "made the same errors this Court corrected in Twitter" when it "ruled that Cox materially contributed to its subscribers' infringement by knowingly failing to cut their Internet connections."
Sony wants to reinstate $1 billion verdict
Even if ISPs win their argument, copyright holders will still have the right to pursue claims of infringement directly against the infringers, the brief said. "They can still use any evidence they collect of online infringement to serve subpoenas to learn the identity of the customer whose Internet access was used for infringement," ISPs wrote. "The subpoenas can then lead to direct actions against the actual infringers."
Record labels say going after individuals is too difficult. Sony and other labels want the Supreme Court to reinstate the $1 billion verdict along with the jury's original finding that Cox was guilty of vicarious infringement.
"Vicarious liability is an especially important tool in the digital age where pursuing direct infringers—in this case, thousands of faceless individuals who cannot be identified except through an ISP like Respondent—is impractical at best and impossible at worst," record labels wrote in an August 16 petition to the Supreme Court.
Record labels say the case "is an ideal vehicle to resolve the scope of the profit requirement," given that the 4th Circuit decided record labels failed to prove that Cox profits directly from subscribers' infringement. "The facts that underpin the jury's profit finding—Cox's fees, its employees' emails, its advertising, and its network traffic—are not in dispute," they wrote.
