Cox Communications urges appeals court to reverse or vacate a ruling finding the ISP liable for copyright infringement

By Emmanuel Legrand

In a brief filed with the Court of Appeals for the Fourth Circuit, Cox Communications claimed that if the judgment that found the US internet service provider guilty of copyright infringement is allowed to stand it will have "devastating consequences."

  Cox was sued by music company BMG for allowing its users to engage in copyright infringing acts. A court found Cox guilty of copyright infringement in 2019, and awarded $1 billion in damages to BMG. Cox has since appealed the ruling and tried to get the damages reduced, to no avail so far.

  The appeals filing describes a series of litigation patterns by record companies to police copyright infringement online. "Record companies have been struggling with internet piracy for at least two decades," reads the filing, suing "thousands of individual infringers," and then suing "peer-to-peer” networks, like Napster, but "the industry found that targeting ordinary consumers was expensive and unpopular" and that P2P networks were getting more elusive."

Not designed to promote piracy

  "So," the suit reads, "15 years after Napster, the music industry launched an aggressive new strategy: Attack the internet itself, suing the internet service providers — the cable and phone companies, like Defendant Cox Communications, that deliver the internet."

  The difference, notes Cox, is that unlike the offerings of Napster, an internet service "is neither designed nor advertised to promote piracy." It claims that "on this record, 99% of Cox’s internet users never put it to that use" nor does Cox "encourage infringement," but it cannot "prevent infringement over its cables, any more than your phone company can prevent users from perpetrating frauds over telephone lines. Instead, Cox invests significant resources in education and deterrence."

  Cox notes that while BMG won a $1 billion verdict for the infringing acts of 58,000 Cox subscribers, but in its defense, it explains that "holding ISPs liable on such a large scale merely for providing internet access flouts settled copyright law. No circuit has ever adopted the theories on which the district court based liability, and several have rejected them. For good reason. Cox cannot monitor subscribers; it does nothing to encourage their infringing conduct; it actively seeks to deter it; it has no way of predicting which subscribers will ignore warnings not to infringe; and it makes not a penny more when they do."

ISPs are in an impossible spot

  It adds: "Cox is much further removed from subscribers’ infringement than the peer-to-peer networks that exist to facilitate it, and is consequently less able to stop it and less culpable."

  On that ground, Plaintiffs said the situation "put ISPs in an impossible spot." It elaborates: "ISPs will have to boot entire households or businesses off the internet — cutting their lifelines, their livelihoods, and their social connections — based on a few isolated and potentially inaccurate allegations. Or they will have to invade our privacy by developing new capabilities to monitor our internet usage 24/7 to ferret out illegal activity. The internet will never be the same."

Devastating consequences

  The filing concludes: "If sustained, this judgment would elevate the interests of the music industry over those of ordinary, and often blameless, people who depend on the internet. The consequences will be devastating."

  The only outcome possible in such a situation, according to Cox, is that the original court decision should be "reversed or, at a minimum, vacated."