Law Professor: ISPs Shouldn’t Bear the Burden of User Copyright Violations

WASHINGTON, Sept. 24, 2024 – Should the whole family lose internet access because someone in the household is downloading pirated content at the expense of music and film companies?

It's a legal dispute the Supreme Court has been asked to settle by Cox Communications, a major broadband ISP with about 6 million subscribers nationally.

In a ruling by the U.S. Court of Appeals for the Fourth Circuit, Cox was found liable for copyright infringement, because it knew of users' piracy violations but did not cut off their Internet access.

In response, Cox petitioned the highest court for review, with ISPs like Altice, Frontier, Lumen, and Verizon filing amicus briefs in support, arguing that the ruling set a dangerous precedent for service provider liability.

Opponents of the ruling have argued that it contradicts two prior Supreme Court decisions and risks creating costly and problematic legal standards for both ISPs and consumers.

In an article published Friday, Daniel Lyons, senior fellow at the American Enterprise Institute and a professor at the Boston College Law School – where he teaches telecommunications, administrative, and cyber law – argued that the ruling undermined past Supreme Court decisions, notably Sony v. Universal City Studios and MGM Studios v. Grokster.

“In Sony, the Court held that a company generally could not be contributorily liable for selling a product capable of substantial noninfringing uses, even if some users violated copyright law,” Lyons wrote. He further noted that, twenty years later, Grokster established liability only when a company actively induced users to infringe.

Lyons explained that the Fourth Circuit erred in two key ways. First, knowing a user previously infringed does not mean Cox knew they would infringe again, especially as Cox employed a graduated-response system that prompted 95% of users to cease illegal activity. Second, Cox’s customers used the internet for legitimate purposes, and cutting off access would unfairly punish entire families.

“Cox could reasonably have concluded that a family should not lose internet access — and miss out on news, educational opportunities, and communication with the outside world — merely because young Johnny was illegally downloading songs in the basement,” Lyons said.

Lyons warned that holding broadband providers liable could lead to increased consumer costs, false positives, and privacy concerns. He recommended copyright holders should instead police their property directly, rather than deputizing ISPs to enforce copyright laws.

Cox's case stems from a 2018 lawsuit in which several record labels, including Sony, sued the ISP, accusing the company of failing to terminate the accounts of subscribers who allegedly used their internet connections to download pirated content. 

Under the Digital Millennium Copyright Act, broadband providers are shielded from liability if they maintain a clear policy for terminating repeat infringers. However, Cox’s case-by-case termination approach was found to be insufficient to qualify for the DMCA’s safe harbor.