The outcome will determine how Internet providers should deal with pirating subscribers on their networks.<\/p>\n
The Supreme Court must decide whether an ISP can be held liable for failing to disconnect repeat copyright infringers. In addition, it must determine if this \u2018inaction\u2019 amounts to willful copyright infringement, even if the ISP wasn\u2019t aware that its specific conduct was illegal.<\/p>\n
Supreme Court Hearing<\/h2>\n
The Supreme Court heard oral arguments in the case, grappling with these questions for nearly two hours. The justices critically questioned all sides in their effort to form a final opinion.<\/p>\n
Cox\u2019s attorney, E. Joshua Rosenkranz, began by arguing that it would be a dangerous expansion of the law to hold an ISP liable for the actions of its subscribers.<\/p>\n
He argued that under the \u201cpurpose\u201d standard, liability should only apply if an Internet provider takes \u201caffirmative steps\u201d to facilitate copyright infringement. For example, by advertising piracy services.<\/p>\n
Cox Communications\u2019 key arguments<\/strong><\/p>\n Rosenkranz added that, under the record labels\u2019 theory, Cox would be liable for failing to take action against alleged crimes. That would essentially turn ISPs into the \u201cInternet police\u201d with devastating consequences.<\/p>\n \u201c[T]he consequences of Plaintiffs\u2019 position are cataclysmic,\u201d Rosenkranz said, noting that universities, hospitals, and entire towns would risk being disconnected from the Internet.<\/p>\n \u201cTurning Internet providers into Internet police for all torts perpetrated on the Internet will wreak havoc with the essential medium through which [the] modern public engages in commerce and speech,\u201d Rosenkranz added.<\/p>\n At the hearing, several justices seemed skeptical of Cox\u2019s claim that inaction is fine. Justice Sonia Sotomayor was particularly aggressive, stressing that Cox could know exactly which subscriber accounts were infringing but simply opts to do nothing.<\/p>\n To illustrate her point, Justice Sotomayor challenged Rosenkranz with a vivid analogy.<\/p>\n \u201cIf I\u2019m a gun dealer and I\u2019m selling to someone who says to me, \u2018I\u2019m going to kill my wife with this gun,\u2019 I think the common law would say you knew what he was going to do with the gun; you joined in. Why isn\u2019t your continuing to provide Internet service the same?\u201d<\/p>\n Cox\u2019s attorney responded by noting that, unlike a murder weapon, an internet connection has substantial legal uses. However, the challenges were not over yet.<\/p>\n Justice Ketanji Brown Jackson continued to test Cox\u2019s theory that \u201cinaction\u201d does not create liability. She presented an even more extreme hypothetical scenario featuring an addicted infringer.<\/p>\n \u201cSuppose I come to you and I want to buy your services. I tell you that I as a customer am addicted to infringing on the Internet. I\u2019ve been sued before. I know what I\u2019m doing is illegal, but I just keep doing it. And not only that, Cox, based on where I live, is my only option.\u201d<\/p>\n Rosenkranz replied that even in that extreme scenario, selling internet access would not create liability for Cox, adding that the music companies or other rightsholders could sue this hypothetical piracy addict instead.<\/p>\n Representing the record labels, attorney Paul Clement stressed that Cox was not an innocent bystander but a \u201cwillfully blind\u201d party that profited from piracy. He pointed to Cox\u2019s internal communication, in which employees expressed contempt for the law, including a now-infamous \u201cf*** the DMCA\u201d email.<\/p>\n The attorney, backed by Justice Kagan, argued that Cox\u2019s legal theory is fatally flawed. If an ISP can never be liable without taking affirmative steps to encourage piracy, then the DMCA\u2019s \u201csafe harbor\u201d would be unnecessary.<\/p>\n \u201cWhy would anybody care about getting into the safe harbor if there\u2019s no liability in the first place?\u201d Justice Kagan asked. And after follow-up questioning, Cox\u2019s attorney agreed that the safe harbor is not doing anything under their suggested liability rule.<\/p>\n The Record Labels\u2019 key arguments<\/strong><\/p>\n While Cox was grilled on the \u2018inaction\u2019 vs. \u2018intent\u2019 issue, the record labels faced tough questions over the requested Internet disconnections. Justices Alito and Gorsuch appeared concerned that the record labels\u2019 liability standard would force ISPs to disconnect thousands of innocent people.<\/p>\n Justice Alito specifically asked attorney Clement how an ISP is supposed to respond to repeated piracy notices if their customer is a university with 50,000 students.<\/p>\n Clement argued that ISPs and rights holders could simply \u201chave a conversation\u201d to resolve such issues, a suggestion Cox\u2019s attorney later dismissed as a \u201cterrible answer\u201d for a company facing \u201ccrushing liabilities\u201d.<\/p>\n Since it is impractical for a university to be disconnected from the Internet, or for a university to disconnect thousands of students, the record labels\u2019 attorney suggested that bandwidth throttling could also be a viable anti-piracy measure.<\/p>\n \u201cI don\u2019t think it would be the end of the world if universities provided service at a speed that was sufficient for most other purposes but didn\u2019t allow the students to take full advantage of BitTorrent. I could live in that world,\u201d Clement answered.<\/p>\n The U.S. Government appeared as an amicus curiae and largely supported Cox\u2019s legal interpretation. Deputy Solicitor General Malcolm Stewart urged the Court to adopt a strict \u201cpurpose\u201d requirement, arguing that unless an ISP provides \u201ctargeted assistance\u201d specifically to pirates, it shouldn\u2019t be liable for the actions of subscribers.<\/p>\n Stewart warned the Justices that expanding liability beyond this \u201cpurpose\u201d test would be dangerous. He argued that forcing ISPs to disconnect allegedly pirating subscribers would clash with the essential role the internet plays in society.<\/p>\n \u201cThe approach of terminating all access to the Internet based on infringement\u2026 seems extremely overbroad given the centrality of the Internet to modern life and given the First Amendment,\u201d Stewart told the Court.<\/p>\n The U.S. Government\u2019s key arguments<\/strong><\/p>\n The Supreme Court now has to decide whether the $1 billion verdict will stand, or if the case will get a do-over at the lower court.<\/p>\n If the court sides with the record labels, ISPs across the United States will continue to need strict \u201crepeat infringer\u201d termination policies to avoid legal liability. If Cox wins, rightsholders will have a hard time holding ISPs liable for pirating subscribers.<\/p>\n The justices are expected to cast their preliminary votes in a private conference later this week, but a final written opinion is not expected before the summer of 2026.<\/p>\n \u2014<\/em><\/p>\n A copy of the oral arguments hearing transcript and the audio is available at the\u00a0Supreme Court\u2019s website<\/a>.<\/em><\/p>\n Source: \u00a0\n
The \u201cGun Dealer\u201d Analogy<\/h2>\n
The \u201cMeaningless\u201d Safe Harbor<\/h3>\n
\n
\u201cMass Evictions\u201d & \u201cBitTorrent Throttling\u201d<\/h3>\n
U.S. Government Backs Cox<\/h3>\n
\n
What\u2019s Next?<\/h3>\n
![\"TorrentFreak\"](\"http:\/\/worldjusticenews.com\/news\/wp-content\/uploads\/2016\/11\/torrentfreak.png\")
<\/a> TorrentFreak.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"