With internet service providers engaged in a bitter battle with major record labels for allowing copyright infringement to continue, who is responsible for internet piracy?
In 2019,
ISPs Back Cox's Supreme Court Petition to Counter 'Extortionate' Piracy Liability Pressure * TorrentFreak
https://torrentfreak.com/isps-back-coxs-supreme-court-petition-to-counter-extortionate-piracy-liability-pressure-240917/
In cases where piracy of copyrighted material is found on the Internet, rights holders often file petitions in court to compel ISPs to disclose evidence. ISPs can then respond to court orders to identify and prosecute suspected copyright infringers by identifying those who operate illegal sites or upload or download illegal files. ISPs can also forcefully suspend access to users who are using the site illegally.
In 2015, Cox Communications, a major ISP, was sued by BMG Music for 'willful conspiracy' to commit copyright infringement and ordered to pay $25 million in damages. ISPs and social media have repeatedly faced similar lawsuits, including a case in which Verizon, a major telecommunications company, was sued for 'allowing copyright infringers to use its network unchecked,' and a case in which Twitter (now X) was sued for damages for ignoring tweets that infringed music copyrights.
Twitter is being asked to pay $350 million in damages from the National Music Publishers Association for ignoring tweets that infringe music copyrights - GIGAZINE
Following an appeal, the lawsuit was dismissed after both sides agreed to pay a settlement, but Cox Communications was required to pay an undisclosed amount. BMG Music said it was 'very pleased with this outcome and will not hesitate to take action against other ISPs if necessary.'
A few months after the settlement with BMG Music ended, Cox Communications was sued by 53 music companies, including Warner Bros. and Sony Music Entertainment. The rights holders argued that Cox Communications has failed to fully eliminate repeat copyright infringers and has profited greatly from this continued piracy, all at the expense of the record companies and other rights holders. Cox Communications countered that ISPs are not responsible for the infringement of their subscribers' rights.
In the end, Cox Communications was found to be 'complicitly and indirectly responsible' for the copyright infringement committed by its subscribers, and was ordered to pay $1 billion in damages. The Recording Industry Association of America (RIAA) , which supported many rights holders in the lawsuit, said in a statement , 'This verdict sends a clear message: ISPs that fail to meet their legal obligations to address copyright infringement on their networks will be held accountable.'
In response to the ruling, Cox Communications argued, 'The damage award is unjust and excessive, and we intend to appeal and vigorously defend ourselves. We provide our customers with powerful tools that connect them to a world full of content and information. Unfortunately, some customers choose to use that connection for misconduct. We do not tolerate that, and we will do our best to educate about and curb it, but no one should be responsible for the misconduct of others.'
As a result, the Fourth Circuit Court of Appeals (CAFC) reversed the $1 billion damages award, stating that 'ISPs are still jointly liable for copyright infringing subscribers, but the judgment that they indirectly infringed copyrights is overturned. ' According to the CAFC, the rights groups had to prove that Cox Communications profited directly from copyright infringement, but the fees paid by infringing users to the ISP did not prove that 'the ISP profits from copyright infringement,' and no evidence of direct monetary benefit was presented.
Cox Communications said in a statement, 'This decision will have far-reaching effects on ISPs and the broader American public. The lower court's decision overly expanded ISP liability and created the nation's harshest secondary liability regime.' Cox Communications' main issues were whether ISPs could be held liable simply because they knew that a particular account was pirating but did not forcibly suspend access, even though there was no evidence that they actively promoted infringement. 'The damages of $150,000 (approximately 21 million yen) per original work are usually only awarded for 'willful' infringement, so is knowledge of a subscriber's piracy 'willful'?' Cox Communications argued.
As this legal battle will affect all ISPs, several ISPs have filed amicus curiae , or legal advice, with the Supreme Court in support of Cox Communications' argument. In the amicus curiae, they cited a past Supreme Court ruling that 'X (formerly Twitter) is not liable for terrorist solicitation and fundraising on X,' explaining that 'in past decisions, this court has held that a 'communications service' has no obligation to terminate a contract with a customer after discovering that the customer is using the service for unlawful purposes. It has also determined that a social media company's continued provision of routine communications services to terrorists is merely a passive omission and does not constitute culpable aiding and abetting,' and argued that the same is true for ISPs and copyright infringement.
At the time of writing, it is still unclear how the Supreme Court will rule on the amicus curiae brought by the ISP group, whether the major record company group will file an objection following the results of the retrial, and how much the amount of damages for Cox Communications, which was withdrawn, will be reduced. The battle between the ISPs, who argue for the need to protect the future of the Internet by protecting ISPs from excessive liability, and the rights holders, who want to impose strong liability on ISPs and suppress infringement as much as possible, is attracting attention as the outcome of the ruling will be of great significance.
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