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

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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]​

cox-rep-sc.jpg.webp

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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HarveyMCR said:
This seems like a reassertion of the status quo.
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Which is a great thing.

The opposite would be expanding the litigational ability of megacorps in tandem with diminishing online annonymity and freedom.

Speaking of? The recording industry is probably donating massively right now to candidates and congresscritters who will back mandatory internet ID "for the kids" to help them recover their money under option "B".

Sue the individuals.
 
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This part right here absolutely guts the 10th circuits ruling in Greer v. Moon. The entire premise of their decision rested upon Null "knowing" about the alleged infringement.

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A part of me likes to think one of the justices read Hardin's brief.
 
oh no its pipkun said:
you will be liable, your isp won't.
john kiwi will be liable, null won't
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And unless you are habitual? There's no point in wasting the money on your broke ass if they can't get millions from the ISP. So 99% of even infringers are safe.
 
TowinKarz said:
And unless you are habitual? There's no point in wasting the money on your broke ass if they can't get millions from the ISP. So 99% of even infringers are safe.
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dont most isps have 3 strikes rules? i remember a torrentfreak article about a media company's lolsuit getting tossed because the ip address didn't necessarily mean the plaintiff did it.
 
Hallelujah and Amen! It’s good to see this play out the way it did. All nine justices being on board makes it even better.
 
oh no its pipkun said:
dont most isps have 3 strikes rules? i remember a torrentfreak article about a media company's lolsuit getting tossed because the ip address didn't necessarily mean the plaintiff did it.
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The big ones do, but niggers who are infringing copyright rawdog on the Internet get what they deserve.
 
mindlessobserver said:
This part right here absolutely guts the 10th circuits ruling in Greer v. Moon. The entire premise of their decision rested upon Null "knowing" about the alleged infringement.
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No, their analysis was that posting the rejected DMCA notice went beyond just showing knowledge. It showed encouragement to more copyright infringement, and contributed to later infringement.

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The time travel joke is that Null couldn't possibly have contributed to the original infringement he was being noticed about, which is true. But the court said it can be "reasonably inferred" that posting his rejection encouraged subsequent infringement.

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The SCOTUS ruling helps, but it's not an automatic win because of what the 10th was specifically ruling on. To blow away Greer's remaining claim of contributory copyright infringement, there needs to be something that says knowledge of potential infringement, and engagement on the merits of the posted content, do not rise to the level of contributing.

One aspect of Greer v Moon frequently glossed over is that both the 10th Appeals, and the District Court it was overruling, both found actual copyright infringement was properly alleged..

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Even if Null reasonably thought it was fair use, that's an affirmative defense. The 10th rejected KF's claim that fair use is "more than an affirmative defense; the language of the statute makes it clear that fair use is not infringement at all." That's fair, as it would be creating new law if it treated it that way. The Cox ruling doesn't touch on this at all.

But the two cases combined show there really needs to be some explicit protections against secondary liability. Debating the merits of the copyright claim, like telling Greer it's fair use, should not create service provider liability. Given that, Null posting said debates could not be contributory either.

Otherwise, we reach an absurd position, where the mere claim of copyright infringement creates liability with any service provider who disagrees with the claim. It's absurd for a DMCA takedown request, which is meant to be the first step in adjudicating a claim, to be taken as 100% proof of criminal activity that a 3rd party is legally obligated to halt.
 
Harvey Danger said:
Even if Null reasonably thought it was fair use, that's an affirmative defense. The 10th rejected KF's claim that fair use is "more than an affirmative defense; the language of the statute makes it clear that fair use is not infringement at all." That's fair, as it would be creating new law if it treated it that way. The Cox ruling doesn't touch on this at all.

But the two cases combined show there really needs to be some explicit protections against secondary liability. Debating the merits of the copyright claim, like telling Greer it's fair use, should not create service provider liability. Given that, Null posting said debates could not be contributory either.

Otherwise, we reach an absurd position, where the mere claim of copyright infringement creates liability with any service provider who disagrees with the claim. It's absurd for a DMCA takedown request, which is meant to be the first step in adjudicating a claim, to be taken as 100% proof of criminal activity that a 3rd party is legally obligated to halt.
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Rather good analysis. Greer v. Moon gives me a headache because there is just so much crap in that case I pity the judges trying to sort through it.

With respect to posting the DMCA notice publicly though, that I think is an issue unrelated to the copyright act. The DMCA is a formal legal procedure under law, established by congress. It is also not a procedure congress explicitly stated needs to be private or classified. Which means as with any legal procedure, the 6th Amendment prohibits any sort of liability attaching from making legal proceeding public. Such liabilities need to be expressly stated in the statute.

Still, that is probably not a hill Null can die on with Greer. But it annoys me nonetheless.
 
Harvey Danger said:
To blow away Greer's remaining claim of contributory copyright infringement, there needs to be something that says knowledge of potential infringement, and engagement on the merits of the posted content, do not rise to the level of contributing.
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the 10th didn't address any fair use defenses? im going to have to reread all those skordas docs again
 
oh no its pipkun said:
the 10th didn't address any fair use defenses? im going to have to reread all those skordas docs again
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The 10th said Skordas didn't raise fair use defense, which he didn't, because he got the whole thing tossed on failure to state claim. When arguing against Greer's appeal, he tried to add it back in, but the 10th (fairly, IMO) said you can't add additional reasons at the appeal stage, much less an affirmative defense.

It's buried in a lengthy footnote to them noting user infringement was adequately alleged.

On appeal, Mr. Moon and Kiwi Farms suggest the copyright infringement here may have been “for purposes such as criticism and/or comment” and is thus protected under the “fair use” limitation of 17 U.S.C. § 107. Appellees Br. at 33. The paragraph discussion identifies the four factors in 17 U.S.C. § 107 but fails to explain what those factors are or why they apply here. We do not address this passing mention of a novel issue. See Day v. SkyWest Airlines, 45 F.4th 1181, 1192 (10th Cir. 2022) (declining “to consider [a] newly raised, inadequately briefed, and analytically complex issue in the first instance on appeal”).

In any case, Mr. Moon and Kiwi Farms did not plead the affirmative defense of fair use, and, “[a]s a general rule, a defendant waives an affirmative defense by failing to plead it.” Burke v. Regalado, 935 F.3d 960, 1040 (10th Cir. 2019) (citing Bentley v. Cleveland Cnty. Bd. of Cnty. Comm’rs, 41 F.3d 600, 604 (10th Cir. 1994)); see also Fed. R. Civ. P. 8(c)(explaining “a party must affirmatively state any avoidance or affirmative defense”).

Perhaps to get around the bar of waiver, Mr. Moon and Kiwi Farms describe fair use as “more than an affirmative defense; the language of the statute makes it clear that fair use is not infringement at all.” Appellees Br. at 33 (citing 17 U.S.C. § 107). But we decline the invitation to transfigure fair use into an un-waivable defense. See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1285 n.21 (2023) (explaining “fair use is an affirmative defense” and the party invoking it “bears the burden to justify its taking” of the protected work); id. at 1288 (Gorsuch, J., concurring) (discussing a party’s invocation of “the affirmative defense of ‘fair use’ to a claim of copyright infringement”).
 
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