The long-running legal battle between a group of major record labels and internet service provider Cox Communications continues. But it’s the rights of internet users that are at stake.
To recap, this case began in 2018 when Sony Music Entertainment and other record labels sued Cox, alleging that the broadband provider was liable for its customers’ copyright infringement. This is because Cox refused to cancel subscribers’ internet service even after the music labels claimed that these same subscribers were infringing their copyrights.
In 2019, a Virginia court found Cox liable for both contributory and vicarious infringement and awarded the labels a staggering $1 billion in statutory damages. Cox appealed, and in a mixed ruling, the U.S. Court of Appeals for the Fourth Circuit affirmed the finding of contributory infringement, but reversed on vicarious infringement. The court also vacated the $1 billion damages award, finding it unjustified, and remanded for a new trial on damages.
While the rejection of vicarious liability and the vacating of the staggeringly disproportionate award may seem like a reprieve for Cox, the court’s approach to contributory liability remains troubling. It could force ISPs to become copyright cops, monitoring their users and cutting off essential internet access based on mere accusations of infringement. This threatens to worsen the already stark digital divide and runs counter to the fundamental idea that broadband is an essential service that ISPs should provision on a non-discriminatory basis as common carriers.
Today, broadband has become an indispensable necessity for navigating daily life. As the Supreme Court recognized in Packingham v. North Carolina, the internet is now a “principal source for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
When the legal framework around ISP liability was first developed in the late 1990s with the Digital Millennium Copyright Act (DMCA), the internet was a far different place. E-commerce was in its infancy, social media was limited to message boards and chat rooms, and concepts like remote work, online education, and telemedicine were mostly just ideas. Broadband as we know it did not exist, the internet was not as widely adopted nor as important economically and culturally, and those households that did get online used dial-up connections. It was telephone companies, not ISPs, who provided the infrastructure (telephone lines) that connected households. It was never proposed that they should be liable for what their subscribers do. Today’s broadband ISPs are in that role.
During the COVID-19 pandemic, our reliance on broadband was thrown into even sharper relief as business, education, healthcare, and social interaction shifted online. A Pew Research Center survey found that 90% of Americans say the internet has been essential or important to them during the pandemic. Imagine being cut off from all of that because someone in your household, perhaps a teenager, was accused of downloading music.
Yet that is effectively what this decision would require, as we argued in an amicus brief, asking the court to reconsider its finding on contributory infringement, that we filed with the Electronic Frontier Foundation and the American Library Association, among others. If allowed to stand, the decision would “force ISPs to terminate more subscribers with less justification to avoid staggering liability.” This would have devastating real-world consequences:
[T]erminated subscribers would face near-insurmountable difficulties with such fundamental parts of life as finding and maintaining work, getting an adequate education, and obtaining healthcare. Innocent users, who may not even know they share an Internet connection with repeat infringers, should not lose the ability to participate in economic and civic life. This punishment is overly harsh for most infringers as well—the harm of being cut off from much of society is disproportionate to the costs of noncommercial, small-scale copyright infringement.
The root of the problem is that the court failed to recognize that ISPs are infrastructure providers, not content police. Like other common carriers such as phone companies, broadband providers should not be liable for how their subscribers use their services. As Cox pointed out in its petition for rehearing:
If an ISP receives more than one accusation that some anonymous person used a specified internet connection to download infringing songs, it can avoid liability only by swiftly throwing every person in that home or business off the internet, disconnecting the guilty and innocent alike from their schools, their livelihoods, their nanny cams, their news, and everything else they do online.
This is an untenable and unjust situation. (And a point of agreement between Public Knowledge and the cable industry! Just not the common carriage part.) Internet users deserve robust due process protections before having such an essential service cut off. An ISP’s unilateral policies, created under pressure from the content industry, are not enough. As we put it in our brief, “No judge-made doctrine of contributory infringement … requires these consequences.”
Punitive ISP policies spurred by this decision would likely have the harshest effects on already marginalized groups. People of color and low-income individuals are more likely to live in shared households and share broadband subscriptions, whether for financial or cultural reasons. Stepped-up termination of those subscriptions could worsen the racial and economic digital divide, and would be at odds with programs that help make broadband affordable and accessible for all, like the Federal Communications Commission’s Affordable Connectivity Program (ACP), and efforts to combat digital discrimination. Bad interpretations of copyright law should not undermine broadband policy.
ISPs’ proper role as common carriers, obligated to serve the public without discrimination, and their role as infrastructure providers, means that they simply do not meet the test for contributory copyright infringement. The legal test is that one who “induces, causes or materially contributes to the infringing conduct of another” becomes liable for their infringement. Absent extraordinary circumstances, applying this standard to ISPs makes no more sense than holding the power company liable for powering an accused infrigner’s computer, holding Microsoft or Dell liable for making the operating system and computers that accused infringers use to get online, or holding the postal service liable when someone sends their friend some unlawfully copied DVDs. The role of broadband providers is too far attenuated, general, and disconnected from specific infringing acts. While Congress enacted a liability shield for ISPs when the internet was less ubiquitous and the technologies were different, the presence or absence of such a shield does not determine whether ISPs should be liable in the first place – especially because today, unlike in 1996, ISPs rather than phone companies provide most household’s basic connectivity.
In today’s world, where broadband is essential infrastructure more akin to electricity or water than a luxury, an ISP’s role is to provide reliable internet access – not to work on behalf of the music industry. We urge the Fourth Circuit to rehear this case en banc and correct its erroneous decision on contributory liability. But regardless of this specific case, policymakers must act to ensure that all Americans have affordable internet access – and that they cannot lose that access without proper due process. In the digital age, losing internet access is not a trivial inconvenience, but a life-altering deprivation. Our laws and policies must recognize that reality.
