Content Interests Tell SCOTUS That Cox Is to Blame for Subscribers' Piracy
Cox Communications is seeking "a tectonic change to the long-settled standard for contributory copyright infringement," the Motion Picture Association told the U.S. Supreme Court. In amicus briefs Wednesday (docket 24-171), MPA and songwriter and recording artist interests backed the music label plaintiffs as Cox appeals its liability for contributory copyright infringement stemming from piracy by some of its internet subscribers (see 2408160034).
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The cable ISP "has no one but itself to blame for having made the intentional choice not to take even minimal steps to address its customers’ repeat infringement," MPA said. It argued that the 4th U.S. Circuit Court of Appeals was following long-held precedent when it applied the contributory infringement rule, which holds that a party that has knowledge of the infringement and materially contributes to the infringing actions of another can be held liable as a contributory infringer. Cox seeking to upend that rule "is extraordinary," MPA said, adding that Cox's proposed rule, in which contributory copyright infringement also involves the defendant intentionally inducing or encouraging direct infringement, would upend the incentives built into the Digital Millennium Copyright Act, such as the liability safe harbor.
MPA said Cox's "doom-and-gloom predictions" about either widespread indiscriminate termination of subscribers' internet access or ISPs facing "crushing liability ... is a false dichotomy." Cox could have taken numerous steps short of terminating internet service in a graduated system for addressing repeat infringement by its customers, but it didn't, the association said.
Recording artist and songwriter interests said argued that since Cox personnel who handle copyright abuse had infringers’ accounts reactivated in the name of generating subscription revenue, the company wasn't found liable for simply knowing that customers engaged in infringement. "It knowingly engaged in a campaign to flout its legal obligations in the interest of preserving revenue," said the National Music Publishers’ Association, Recording Industry Association of America, Nashville Songwriters Association International and Songwriters of North America.
Lower courts are having trouble reconciling 20th-century contributory liability precedents "to the fact patterns of today," said Marquette law Professor Bruce Boyden in his brief. SCOTUS should apply some tort law concepts to copyright questions, he said, such as the knowledge standard, which says knowledge of an act -- not intent -- makes a defendant liable.