Law Supreme Court Seeks U.S. Govt’s View on ‘Repeat Infringer’ Piracy Cases

https://torrentfreak.com/supreme-court-seeks-u-s-govts-view-on-repeat-infringer-piracy-cases-241126/

https://archive.ph/Cz0SK

November 26, 2024 by Ernesto Van der Sar

The Supreme Court has signaled its interest in a landmark case that could redefine anti-piracy enforcement. By calling on the Solicitor General to weigh in on the "repeat infringer" dispute between Cox Communications and several record labels, it has become more likely that the Supreme Court will eventually share its opinion on the "billion dollar" piracy controversy.

In 2019, Internet provider Cox Communications lost its legal battle against a group of dozens of record labels, including Sony and Universal.

Following a two-week trial, a Virginia jury held Cox liable for its pirating subscribers. The ISP failed to disconnect repeat infringers and was ordered to pay $1 billion in damages.

This case is one of many. Other ISPs have been accused of being similarly lax in their stance against alleged piracy. Rightsholders believe that ISPs are motivated by profit while the ISPs typically argue that they shouldn’t be held liable for the alleged wrongdoing of subscribers.

Landmark Piracy Battle​

Cox challenged the verdict through several routes and in August, filed a petition at the U.S. Supreme Court asking it to hear the case. The Internet provider stressed that the current verdict ‘jeopardizes’ internet access for all Americans.

Around the same time, the music companies filed their own petition, hoping to strengthen the verdict at the Supreme Court. Specifically, the record labels argued that the ISP should also be held liable for vicarious copyright infringement.

Both petitions essentially boil down to questions on liability. Are ISPs liable for copyright infringement if they don’t disconnect subscribers accused of copyright infringement? And can ISPs be held liable for infringing subscribers, even if they don’t directly profit from their activities?

Supreme Court Shows Interest​

These writs of certiorari ask the Supreme Court to clarify how current law should be interpreted. The Supreme Court typically has a high barrier to accept new cases but, once greenlighted, they could shape the law for decades to come.

Yesterday, the Supreme Court suggested that it is indeed interested in the questions. In an order where dozens of petitions were denied, those submitted by Cox and the music companies were referred to the Solicitor General.

“The Solicitor General is invited to file a brief in these cases expressing the views of the United States,” the brief comment reads.

From the Supreme Court’s order list (pdf). [PDF attached]​

The Solicitor General is a high-ranking official in the U.S. Department of Justice who serves as the federal government’s primary lawyer before the Supreme Court. In the present cases, it can express the government’s position on the presented legal questions.

The referral signals that the Supreme Court considers the case to have significant implications for the federal government or federal law. If the Department of Justice agrees, it is more likely that the Supreme Court will take on these cases.

What’s the U.S. Government’s View?​

While it’s clear that the Supreme Court is interested in these cases, the Solicitor General’s view is unknown. Thus far, the government has mostly stayed on the sidelines in these matters.

The most concrete suggestion came in 2020, when the U.S. Copyright Office released a report calling for clearer standards on what constitutes “reasonable implementation” of a repeat infringer policy. The perceived lack of clarity has led to inconsistent practices and legal uncertainty.

Those types of legislative changes are typically something that Congress should determine, but the Supreme Court can help to shape the legal interpretation of the DMCA as we know it today.

With hundreds of millions of dollars in damages on the line, a Supreme Court opinion is poised to provide some additional clarity in the ongoing DMCA “repeat infringer” controversy.

 

[Osmosis Jones]

It makes no sense to hold a middleman accountable wholesale nor is it wise to make it the job of corporate ISPs to patrol and police what people do online.

 

[Gog & Magog]

Don't most apartments share only one ISP across the whole building?

 

[Not Really Here]

It makes no sense to hold a middleman accountable wholesale nor is it wise to make it the job of corporate ISPs to patrol and police what people do online.

Really seems like they would need a judgement against the infringer, before demanding the ISP do anything.

 

[40 Year Old Boomer]

Why not hold these media conglomerates accountable for the actions of their artists and executives while we're at it?

 

[IAmNotAlpharius]

Yeah I don’t want the ISP to have that kind of power nor should they be held responsible. The only silver lining is that it would impact the porn industry and there’d be much crying and wailing of teeth.

 

[COME ON OUT YOU RAPIST]

This is all rendered moot by VPNs, which the government did not succeed in banning because it was retarded. Your ISP will never identify user piracy if you don't want them to. Media jew conglomerates have no recourse.

 

[Chongqing]

It makes no sense to hold a middleman accountable wholesale nor is it wise to make it the job of corporate ISPs to patrol and police what people do online.

Agreed, but maybe they got the idea from the banking industry.

 

[Barry McKockner]

It makes no sense to hold a middleman accountable wholesale nor is it wise to make it the job of corporate ISPs to patrol and police what people do online.

But it does make a lot of sense to them, doesn't it? It's their wet dream to force compliance or be excommunicated from society.

 

[The Mass Shooter Ron Soye]

TorrentFreak: Supreme Court Grants Cox’s Bid to Reexamine Liability for Pirating Subscribers (archive)

June 30, 2025 by Ernesto Van der Sar

The U.S. Supreme Court announced today that it will take up a landmark piracy liability lawsuit between Cox Communications and several record labels. The Court granted Cox's petition for a writ of certiorari. It review the contributory infringement standards that determine how ISPs should respond to pirating subscribers, as well as the associated willfulness finding. The record labels' cross-petition was denied.

Last summer, Cox Communications filed a petition at the U.S. Supreme Court, requesting a review of the Fourth Circuit ruling that held the company contributorily liable for pirating subscribers.

The internet provider ultimately challenged the $1 billion verdict from a Virginia jury in 2019, which went in favor of a group of major record labels, including Sony and Universal.

As Cox petitioned the Supreme Court, the music companies filed their own petition, hoping to expand the verdict. Specifically, they argued that the ISP should also be held liable for vicarious copyright infringement.

From the outset it was clear this would be a pivotal case with potentially broad consequences for many other ISPs and rightsholders dealing with similar copyright issues. After considering the arguments from both sides and the U.S. Government, the Supreme Court announced its decisions today.

Supreme Court Grants Cox’s Petition​

In the latest order list released this morning, the Supreme Court grants Cox’s petition for a writ of certiorari.



By granting Cox’s petition, the Supreme Court agrees to review crucial questions surrounding contributory copyright infringement. This includes a potential re-evaluation of how ISPs are required to respond to copyright infringement notices and what an appropriate “repeat infringer policy” entails.

Specifically, Cox presented the following question to the Supreme Court:

“Did the Fourth Circuit err in holding that a service provider can be held liable […] merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?”

Contributory copyright infringement requires a finding that ISPs have “knowledge” of and “materially contribute” to piracy activities. However, Cox questions whether these elements are triggered upon mere receipt of multiple piracy notices from third-party rightsholders.

In addition, Cox also raised concerns about the jury’s “willfulness” ruling, which resulted in the maximum statutory damages of $150,000 per work. The ISP countered that knowledge of subscribers’ copyright infringements is not necessarily willful, if the company did not know that its own conduct was illegal.

Key Input from U.S. Solicitor General​

The highly anticipated decision comes just weeks after the U.S. Solicitor General filed an influential amicus brief, urging the Supreme Court to take precisely this path.

The Solicitor General argued that an ISP is not automatically liable for copyright infringement if it merely fails to terminate subscribers after receiving multiple notices. It warned that the Fourth Circuit’s verdict could have “broad negative implications for ISPs and their subscribers,” potentially leading to disconnections of many innocent users.

The brief also strongly argued that Cox’s actions were not “willful,” stating that “willfulness” generally requires knowledge or reckless disregard for the defendant’s own unlawful conduct, not just that of third parties.

While the reasoning of the Supreme Court is currently unknown, the decision matches the advice of the U.S. Solicitor General. This also applies to the separate cross petition filed by the record labels.

Supreme Court Denied Labels’ Petition​

In the same order batch this morning, the Supreme Court denies the labels’ petition for a writ of certiorari. Again, without providing any details for its reasoning.



The record labels were seeking to hold Cox vicariously liable, arguing that it profited directly from piracy by declining to terminate repeat infringers to keep their subscription fees.

The lower court previously dismissed this claim, but the labels asked the Supreme Court to take up the issue in their own cross-petition. This request was denied.

The denial is in line with the Solicitor General’s assessment that the Fourth Circuit correctly concluded Cox did not derive a direct financial benefit from the alleged infringements, or that its stance towards piracy acted as a draw to potential customers.

The record labels previously rebuffed the U.S. Government position, characterizing it as bewildering, but that didn’t yield a result.

Path Forward​

With Cox’s petition granted, the case will now be scheduled for oral arguments before the Supreme Court in the upcoming term. This highly anticipated hearing will offer both sides the opportunity to present their arguments in detail.

Needless to say, this case will continue to be watched closely by internet providers and copyright holders alike.

Today’s orders ensure that Cox’s liability for contributory infringement will be reviewed in detail. At the same time, the battle over vicarious liability, at least for now, appears to be settled in favor of ISPs.

 

[Angry Alt Right Nerd]

You guys know someday Trump's supreme court is going to kill kiwifarms

 

[buying gf]

You guys know someday Trump's supreme court is going to kill kiwifarms

Finally, we will be free of this hell.

 

[obsdj]

Cox v. Sony is also notable because both Cox and Sony cite the 10th Circuit's opinion in Greer v. Moon. This case is relevant to our interests!

 

[pikachudidnothingwrong]

TorrentFreak: Supreme Court Grants Cox’s Bid to Reexamine Liability for Pirating Subscribers (archive)

That is awesome news. They rarely take things unless they see a problem with at least some aspect. And since this case's elements are pretty simple, it's hard to imagine this was over some overall unimportant technicality.

It cannot be overstated how destructive and dangerous the ruling was. It opens the doors to all other sorts of dystopian means of "fighting" unauthorized copying and other crap. It opens lots of scary doors in fact. Beyond just CR law.

 

[TowinKarz]

That is awesome news. They rarely take things unless they see a problem with at least some aspect. And since this case's elements are pretty simple, it's hard to imagine his was over some overall unimportant technicality.

It cannot be overstated how destructive and dangerous the ruling was. It opens the doors to all other sorts of dystopian means of "fighting" unauthorized copying.

It's not debatable that they sued Cox and not the repeat offenders because they got bigger pockets.

Just because my preferred auto garage has more in liquidity than I do doesn't mean you get to sue them if they keep inspecting my car that I keep driving drunk in. that's on me, not them.

 

[Strix454]

Music piracy? Come on. They lost that battle 20 years ago. All they end up doing is enocoraging even more VPN use which gives these companies less visibility into the internet.

 

[obsdj]

In yesterday's MATI (about 30 minutes in), Josh revealed that our very own Hardship, Matthew Hardin, is planning to file an amicus brief in this SCOTUS case, what with both sides citing Greer v. Moon. (Which will be costly due to the high printing standards of the Court, so he's looking for membership signups for USIPS.)

 

[TowinKarz]

Music piracy? Come on. They lost that battle 20 years ago. All they end up doing is enocoraging even more VPN use which gives these companies less visibility into the internet.

They HAD the tech back then to effectively end piracy because the market was clamoring for download-on-demand, and the record industry stubbornly clung to "physical album sales at retail" as the ONLY way they'd EVER do business. By the time they finally admitted defeat and moved off that rock? The infrastructure for digital delivery was already established and fully outside their control.

They had a chance to get in on the ground level and blew it.

Even though I agree that piracy is endemic in media? I will not be guilt-tripped into giving them the power to nuke the internet to stop it when it's mostly their fault to start with.

 

[Chunky Salsa]

Finally, we will be free of this hell.

What a grand and intoxicating innocence. You're here forever.

 

[Marvin]

However, Cox questions whether these elements are triggered upon mere receipt of multiple piracy notices from third-party rightsholders.

This is really a good argument and I hope the Supreme Court handles it properly.

Whether or not something is a copyright infringement (and not fair use or some other exception), is a highly technical question that can really only be settled in court. It's 100% appropriate for the ISP to say "we are not qualified to evaluate the legitimacy of your piracy notice, take it to court".

Maybe it'd be OK for a court to issue some kind of order booting a persistent pirate from being able to get internet service anymore. But I sure as shit don't want that sort of decision to be decided on the basis of some pajeet ISP account manager eyeballing a letter from some overbearing music industry douchebag.