This article was co-authored by Lara Ellenenberg, EFF legal intern
By suing Internet service providers (ISPs) for the actions of a few of their users, Sony Music, other major record labels and music publishing companies have found a way to cut people off from the Internet on the basis of simple charges of copyright infringement. . When these music companies sued Cox Communications, an ISP, the court was wrong. He decided that the only way for an ISP to avoid being held responsible for breaches committed by its users was to terminate a household or business account after a small number of charges, perhaps. be only two. The court also authorized a damages formula that could lead to almost unlimited damages, unrelated to actual harm suffered. If not reversed, this move will lead to the loss of countless numbers of people, as ISPs will begin to cut more and more customers to avoid massive damage.
The EFF, in collaboration with the Center for Democracy & Technology, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries and Public Knowledge filed an amicus brief this week urging the Court United States appeal for the fourth circuit to protect Internet subscriber access to essential Internet services by overturning the district court decision.
The district court agreed with Sony that Cox is liable when his subscribers (home and business Internet users) infringe the copyright in music recordings by sharing them on peer-to-peer networks. He did find that Cox did not terminate the allegedly infringing subscriber accounts aggressively enough. An earlier lawsuit found that Cox was not protected by the Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA) that protect certain Internet intermediaries, including ISPs, if they comply with DMCA requirements. One of these requirements is to implement a termination policy for “subscribers and account holders… who are repeat offenders” in “appropriate circumstances”. The court ruled in that previous case that Cox had failed to fire enough customers who had been accused of infringement by the music companies.
In that case, the same court found Cox liable for his clients’ copyright infringement and upheld the jury’s verdict of $ 1 billion in damages, by far the highest amount ever awarded. in a copyright case.
The district court made the wrong law
When an ISP is not protected by the Safe Harbor provision of the DMCA, it can sometimes be held liable for copyright infringement by its users under the doctrines of “secondary liability”. The district court found Cox liable for both types of secondary liability – contributory infringement and vicarious liability – but misapplied both, with potentially dire consequences.
An ISP can be liable if they knew that a customer had infringed someone else’s copyright but did not take “simple steps” available to them to stop further infringements. Judge O’Grady’s instructions to the jury incorrectly implied that because Cox had not end faking user accounts, he did not take “simple measures”. But the law does not require ISPs to terminate accounts to avoid liability. The district court wrongly imported a termination requirement of the DMCA’s Safe Harbor provision (which had already been overturned earlier in the case). In fact, the actions Cox took prior to the termination actually ended most copyright infringements – a fact the district court simply ignored.
The district court was also wrong about vicarious liability. Vicarious liability stems from the common law of the agency. He argues that people who are steps away from copyright infringement (the “principal”, for example, a flea market operator) may be held liable for the copyright infringement of his “agent. (For example, someone who sells pirated DVDs at that flea market), when the principal had the “right and the capacity to supervise” the agent. In that case, the court ruled that because Cox could end accounts accused of copyright infringement, he had the ability to oversee these accounts. But that’s not how other courts have ruled. For example, the Ninth Circuit ruled in 2019 that Zillow was not responsible when some of its users uploaded copyrighted photos to real estate listings, even though Zillow could have terminated those users’ accounts. In reality, ISPs do not monitor the Internet activity of their users. This would require a level of monitoring and control that users will not tolerate, and that EFF fights against on a daily basis.
The consequence of an error in the secondary liability law here, combined with the award of $ 1 billion in damages, is that ISPs will terminate accounts more frequently to avoid massive damage and cut much more money. people from the Internet than it is necessary to combat copyright infringement. .
District court ruling violates due process and harms all internet users
Not only did the ruling abuse the secondary liability law, but it also violates fundamental ideas of due process. In a different context, the Supreme Court has ruled that civil damages may violate the due process requirement of the Constitution when the amount is excessive, especially when it does not take into account the public interests at stake. In the case against Cox, the district court ignored both the fact that an award of $ 1 billion in damages is excessive and that its ruling will cause ISPs to terminate accounts more easily and, in the process, cutting many more people off the Internet than necessary. .
Having robust internet access is an important public interest, but when ISPs start to over-enforce to avoid having to pay billion dollar damages, that access is threatened. Millions of Internet users rely on shared accounts, for example at home, in libraries or at work. If ISPs start to terminate accounts more aggressively, the impact will be felt disproportionately by the many users who haven’t done anything wrong but are only using the same internet connection as someone who was reported. for copyright infringement.
More than a year after the start of the COVID-19 pandemic, it is more evident than ever that Internet access is essential for work, education, social activities, healthcare and more . If the district court’s decision is not overturned, many more people will lose access at a time when no one can afford not to use the Internet. This harm will be particularly felt by people of color, the poorest, women and people living in rural areas, all of whom are disproportionately dependent on shared or public internet accounts. And since millions of Americans have access to only one broadband service provider, losing access to a (shared) Internet account essentially means losing Internet access altogether. This loss of broadband access due to accelerated termination will also deepen the racial and economic digital divide. This is not only unfair for internet users who haven’t done anything wrong, but also too harsh for most copyright infringers. To be effectively cut off from society when an ISP terminates your account is excessive, given the real costs of non-commercial copyright infringement for large companies like Sony Music.
It is clear that Justice O’Grady misunderstood the impact of the loss of Internet access. At a hearing on Cox’s previous infringement case in 2015, he called the concerns about the loss of access “completely hysterical” and compared them to “my son complaining when I took his electronic devices when watching YouTube videos instead of doing homework ”. Of course, that wasn’t a valid comparison in 2015 and it rightly seems absurd today. That is why, as the case is brought before the Fourth Circuit, we ask the court to rectify the law and to center the importance of preserving Internet access in its decision.