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


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]​

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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.
 

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The Solicitor General will be participating in oral argument. Only three weeks away!
 
TorrentFreak: Cox Accuses Labels of ‘Distancing’ Themselves From “Two-Strike” Piracy Theory (archive)

November 10, 2025 21:17:05 UTC by Ernesto Van der Sar

In its final written argument to the Supreme Court, Cox Communications accuses the major record labels of "distancing" themselves from the "two-notices-and-terminate" rule that was the basis of their trial victory. The ISP's reply brief forces the labels to either defend a "flawed theory" that Cox claims would lead to "mass evictions" of hospitals and senior citizens, or abandon the legal basis for their billion-dollar win.

The Supreme Court case between several major record labels and Internet provider Cox Communications is one of the landmark copyright battles of this decade.

The outcome will determine how Internet providers should deal with pirating subscribers on their networks.

Should alleged pirates be disconnected from the Internet after repeated third-party allegations of copyright infringement? Or does that go too far?

In its opening brief, Cox argued that the company should not be held liable for contributory copyright infringement because it failed to terminate subscribers after multiple warnings. The U.S. Government, various tech companies, and other interested parties, supported Cox’s position.

Last month, the major record labels, including Sony and Universal Music, countered these arguments in their response brief. Describing Cox as a company that willingly prioritized profits over piracy, they argued that the $1 billion verdict against the ISP should be upheld. They also received broad support, including from lawmakers and legal experts.

Cox: Labels Must Defend Two-Strike Rule​

Before the Supreme Court Justices hear the case, Cox took the opportunity to have the final word. The Internet provider submitted a reply brief where it doubled down on its earlier arguments while accusing the labels of distancing themselves from the “two-notices-and-terminate” rule that won them the $1 billion verdict at trial.

The labels wrote in their response brief that they are not pushing for a “two-notices-and-terminate theory,” nor are they asking for mass terminations of subscribers. Instead, they characterized Cox as a hypocritical bad actor that should take responsibility.

Cox suggests that, with this positioning, the labels are effectively trying to reframe the judicial history. The ISP argues that Sony’s brief confirms this, noting that the labels sued over subscribers with “at least three notices,” which legally means Cox is being held liable for failing to act after the second piracy notice.

This relatively low threshold would lead to mass suspensions, according to Cox, and the labels should effectively defend this position at the Supreme Court.

“For years, Plaintiffs have deluged the nation’s ISPs with automated notices, then sued those ISPs on the same flawed theory: Once an ISP receives two notices for any internet account, it must terminate the account—or become a willful contributory infringer for all future infringement,” Cox informs the Court.

“They cannot deny that the courts below applied this two-notice threshold uniformly across 57,000 homes and businesses. The record unquestionably shows that included ‘hospitals’ and ‘senior citizens,’ dorms and barracks, and even regional ISPs.”

Cox forces the labels to own the most extreme version of their argument. If they do so, the ISP can point out that this will lead to many disconnections of innocent users. Alternatively, if the labels abandon the “two-notices-and-terminate” rule, Cox can argue that the $1 billion verdict should be invalidated.

Knowledge vs. Culpable Purpose​

At the core of the Supreme Court battle is the question of whether ISPs can be held liable for having “passive knowledge” about infringements or if liability requires “culpable intent” to facilitate those infringements. Cox argues the latter.

The reply brief reiterates many of these arguments, and as a sign of strength, Cox explicitly mentions that it has the U.S. government on its side.

“Cox and the Government have laid out a simple culpable-conduct rule derived from this Court’s copyright and aiding-and-abetting cases: Contributory liability depends on proof of an affirmative act demonstrating a culpable intent to further infringement,” the reply brief reads.

Not a Bad Actor​

The brief also addresses the record labels’ bad actor arguments. This includes an email in which a manager responsible for the company’s DMCA compliance told his team, “F the dmca!!!”. Cox notes that these frustrated, private emails do not suggest that the company actively encouraged or fostered copyright infringement.

Similarly, Cox also dismissed the profit-related bad actor argument, including the accusation that it failed to disconnect pirates to retain revenue. The ISP points out that the Fourth Circuit already rejected the profit argument when it threw out the separate vicarious liability verdict.

Finally, the ISP points out that it did have a graduated response system in place where subscribers suspected of piracy were issued with warnings. This had a 98% deterrence rate, Cox argues, which directly contradicts the ‘bad actor’ narrative.

“Cox’s anti-infringement program suspended over 67,000 accounts during the claim period alone, and deterred 98% of infringers,” the reply brief reads.

“If Plaintiffs can now vilify that program as a failure to ‘tak[e] any serious effort to stop these infringers from infringing,’ no ISP is safe.”

Government Agrees It’s Not “Willful”​

In addition to the liability question, the Supreme Court will also review whether Cox’s actions were willful. This is relevant to the damages calculations, which ultimately resulted in the $1 billion verdict. Here, Cox again uses the government’s position as a key argument.

Cox argues it cannot be found “willful” just for knowing its customers were infringing if it did not believe that its failure to act was unlawful. That was a reasonable belief, Cox argues, especially since the U.S. Government now agrees with it.

“Plaintiffs are also wrong in repeatedly conflating an ISP’s knowledge that a specified user is infringing with knowledge that the ISP is itself illegally ‘facilitating’ the misuse unless it cuts the cord. If the United States Government rejects that equation, then surely an ISP can reasonably reject it.”

With the final reply brief filed, all the key written arguments are now on the record. The Supreme Court is scheduled to hear oral arguments from Cox, the record labels, and the U.S. Government, in a few weeks. A final decision in this landmark case is expected next year.


A copy of Cox’s reply brief, filed with the Supreme Court, is available here (pdf)
 
Goal number one needs to be repealing DMCA ASAP!

Last month, the major record labels, including Sony and Universal Music, countered these arguments in their response brief. Describing Cox as a company that willingly prioritized profits over piracy, they argued that the $1 billion verdict against the ISP should be upheld. They also received broad support, including from lawmakers and legal experts.
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That last part is depressing, alarming and infuriating. So-called "experts" with little clue what they are talking about.

This sums up these experts and of their arguments.

The amici clearly have the required expertise and their previous work as lawmakers and copyright experts carries weight. At the same time, it should be noted that some have since moved on to new positions at organizations that have a direct interest in the legal showdown.
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Friendly reminder, especially for our friends in the Greer v. Moon thread, Cox v. Sony will be argued before the Supreme Court this Monday, December 1st! Greer v. Moon was quietly ditched by both of the main parties to the case after cert was granted, but some of the amici referred to it anyway in their subsequent briefs, so there's still a chance we might get namedropped!

You can listen live either on the SCOTUS website itself, or on C-SPAN (which has the small bonus of telling you who is speaking during oral arguments, since video is not provided). Our case is first up at 10am eastern time.
 
George Lucas said:
I will be shocked if SCOTUS rules in Sony’s favor.
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Really I read it the other way.

Could be a new set of rules coming up for ISPs, if they're going to be liable for pretty much anything anyone posts using thier service then the ISPs will, have to really really really tighten controls and censorship.
 
Sweeter and Savoury said:
Really I read it the other way.

Could be a new set of rules coming up for ISPs, if they're going to be liable for pretty much anything anyone posts using thier service then the ISPs will, have to really really really tighten controls and censorship.
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multiple justices were asking cox what power the dmca has if they ruled in favor of cox .

surprisingly kagan and jackson brown asked sony about intent of the service (cox doesnt advertise its services for infringement) and sony fumbled.

im disappointed cox didnt explain to the court that an ip doesnt necessarily mean the customer infringed.


nvm gorsuch asked the sony lawyer about ip, the cox customer and uncertainty of the infringer.
 
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Could this have implications outside the scope of the DMCA? like leading to ISPs blacklisting websites that they deem problematic? Or is it solely related to copyright infringements?

how I'm reading it is and ISP is liable for what someone does using their services, so therefore they could be liable for anything anyone does.

someone tell me If I'm retarded or not.
 
Vindeo said:
Could this have implications outside the scope of the DMCA? like leading to ISPs blacklisting websites that they deem problematic? Or is it solely related to copyright infringements?
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The attorney for Cox said in oral argument that the risk of deciding in favor of Sony could lead to entire regions of consumers being blocked to prevent ISP liability. Or, more sensibly, hotels, universities, public wifi sources, etc. being blocked because users of that infrastructure are engaging in piracy so the ISPs block the entire source to protect themselves from liability. The Court seemed to buy that as a serious risk.

Also note that the guy arguing for Sony, Paul Clement, is the same guy who argued for the 2nd Amendment in Bruen—and when he won he was pushed out of his huge law firm (Kirkland) because they couldn't handle being the law firm that actually defended gun rights. Rosenkranz, for Cox, I believe is the scion of the Rosenkranz family, which is very involved in judicial conservatism and public life. The Federalist Society's keystone debate at their big National Lawyers Conference in DC is named the "Rosenkranz Debate." It's a small world.
 
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