Photo Credit: Jonathan
The Trump administration has thrown its support behind Cox Communications in the high-profile Cox v. Sony case as the case heads to potential review by the U.S. Supreme Court.
At the heart of the case is whether internet service providers (ISPs) like Cox should be held liable when subscribers use their networks to illegally download copyrighted music. If found liable, Cox would be required to boot offending customers and may face massive financial penalties for continuing to supply connection to alleged pirates.
The case was filed back in 2018 when more than 50 record labels including Sony Music Entertainment sued Cox for not terminating the accounts of subscribers accused of repeatedly pirating music. A Virginia jury initially awarded the music labels a $1 billion verdict against Cox—finding the ISP liable for both contributory and vicarious copyright infringement. However, the Fourth Circuit Court of Appeals later overturned the vicarious liability finding and the damages award. However, the appeals court upheld the contributory infringement ruling—sending the case back for a new trial on damages.
Both parties have since petitioned the Supreme Court to hear the case. Cox is seeking to overturn any liability related to continuing to platform pirates, while the music industry seeks the reinstatement of the initial fine. In response, the Supreme Court has asked the Department of Justice (DOJ) to weigh in. This week, the Trump DOJ, through Solicitor General John Sauer, filed a brief urging the court to take up Cox’s appeal and reject Sony’s.
The Trump administration’s brief argues that the Fourth Circuit’s decision threatens to expose ISPs to sweeping liability. It also argues that it could force ISPs to disconnect users after receiving a single copyright complaint. Sauer notes that such an approach could set a precedent that leads to innocent users losing internet access over unproven allegations.
Sauer writes that the 4th Circuit decision if not overturned, “subjects ISPs to potential liability for all acts of copyright infringement committed by particular subscribers as long as the music industry sends notices alleging past instances of infringement by those subscribers.” He also argues that this could “encourage providers to avoid substantial monetary liability by terminating subscribers after receiving a single notice of alleged infringement.”
Sauer continues to argue that rulings in Sony v. Universal City Studios and MGM Studios v. Grokster “make clear that contributory liability for copyright infringement requires more than knowledge that others have put the defendant’s products to infringing use. Instead, it requires ‘culpable intent’ to cause infringement.”
The DOJ further argues that simply providing access to the internet—even after receiving infringement notices—does not constitute “material contribution” to copyright infringement. The DOJ draws parallels to a recent case involving X/Twitter, where the Court found that providing a platform does not make a company liable for its users’ illegal acts unless the company is actively participating.
“If Cox had explicitly or implicitly marketed its services as being particularly useful for infringers, or if it had encouraged subscribers to use Cox’s Internet service to infringe, liability might be appropriate. But as the court of appeals acknowledged, Cox’s business model was indifferent to whether it’s subscribers used the internet for lawful or unlawful purposes.”
Saur writes that siding with Sony would “threaten liability for other service providers” like electric utilities that might be asked to cut services to customers who used the service for unlawful purposes.
“Many accounts that triggered multiple notices belonged to hotels, hospitals, universities, and regional ISPs serving hundreds of thousands of individual users,” Sauer continues. “Under the decision below, Cox would be held liable for direct infringement committed by any of those users, whose identities it does not know and with whom it has no contractual relationship.”
Saur also urged the Supreme Court to reject Sony’s petition for a review. “The court of appeals correctly held that Sony had not satisfied its burden of showing that Cox financially benefited from infringement on its network. As the court explained, Cox charges its customers a flat fee for internet service, regardless of what its users do online.”
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