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| DATE | 2025-12-01 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout - NYLXS] Copyright Wars to shutdown internet access..
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https://slate.com/news-and-politics/2025/11/supreme-court-sony-cox-copryight-internet-case.html
The Supreme Court Is About to Hear a Case That Could Rewrite Internet Access
By Michael P. Goodyear
Nov 28, 20255:50 AM
Lady Justice is emerging from a computer in front of the Supreme Court
building.
Photo illustration by Slate. Photos by Getty Images Plus.
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Imagine losing internet access because someone in your household
downloaded pirated music. We rely on the internet to learn, discover job
opportunities, navigate across cities and the countryside, shop for the
latest trends, file our taxes, and much more. Now all of that could be
gone in an instant.
That is not a dystopian fantasy, but a real possibility raised by a case
the Supreme Court will hear on Monday. In Cox Communications, Inc. v.
Sony Music Entertainment, the justices will decide whether an internet
provider can be held responsible for failing to terminate subscribers
accused of repeat copyright infringements. The ruling could determine
whether access to the internet—today’s lifeline for education, work, and
civic life—can be taken away as punishment for digital misdeeds. Cox’s
indifference to repeat infringement is condemnable, but a sweeping
ruling could harshly punish thousands for one company’s bad faith.
Over seven years ago, a group of record companies sued internet service
provider Cox for facilitating copyright infringement. They alleged that
Cox’s subscribers infringed their copyrights in sound recordings and
musical compositions by copying and distributing them via BitTorrent and
other networks. Cox, they said, knew about the infringements, yet
continued to provide network access to the infringers, who continued to
infringe. A jury eventually found Cox liable under two theories,
vicarious and contributory liability. An appellate court upheld the
finding of willful contributory liability, which requires knowledge and
a “material contribution” to the infringement. One of the two questions
before the Supreme Court in Cox on Monday is whether a service provider
can be held liable for materially contributing to copyright infringement
because it knew specific accounts were being used to infringe and did
not terminate access, but did not otherwise affirmatively foster or
promote subscriber infringement.
Courts and legislatures have long sought to punish others for an
individual’s unlawful activity if they supported the activity in some
way. Legally, the one engaging in unlawful behavior is directly liable,
while the others are secondarily liable. The idea is to deter unlawful
activity by not just targeting the one who committed a wrong, but also
those who facilitated it. For over a century, the Supreme Court has said
others can be secondarily liable for another’s copyright infringement.
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The scope of secondary liability is not infinite. Otherwise, any minor
action or general service by a bystander could suffice. This was at
issue two years ago in the Supreme Court case Twitter, Inc. v. Taamneh,
which held that Twitter was not liable for facilitating terrorist
attacks by merely providing a social media service and recommendation
algorithms. Twitter did not act with bad intentions, and the link
between Twitter and the specific attacks was weak.
Intent has been the polestar for the evolution of secondary
liability—and especially the contributory liability theory—in copyright
law. On this basis, merely offering a product that could be used for
copyright infringement is not enough if that product is also capable of
substantial noninfringing uses. Running a social media or e-commerce
website is also insufficient unless there is knowledge of specific
infringing content that could be removed.
Those that have worse intentions are often liable. Allowing
second-generation copying on digital audio tape devices could suggest a
desire to permit infringement. Knowing of a specific infringement on a
platform and not removing it is infringement. Turning a blind eye to
infringing sellers at your swap meet is infringement. Encouraging users
to infringe using your product is also infringement.
Copyright law has changed in response to new technologies. Yet the heart
of secondary liability development has always been intent. One’s actions
after learning of specific infringements are indicative of their intent.
What makes Cox feel different from these earlier cases are the stakes.
If I repeatedly post art infringing the copyrighted work of Kehinde
Wiley to Instagram or Amazon, I will likely have my accounts suspended.
Being banned from a social media or e-commerce platform would change my
daily routine. But it would not upend my life. Losing access to the
internet, however, would be cataclysmic. I could no longer easily access
online financial services, job listings, news, or any of the other
resources that we take for granted in the 21st century. Removing
internet access (for over 57,000 accused accounts) would be a
significant—and, under certain circumstances, troubling—remedy from Cox.
While repeat infringers are hardly innocent, removing their internet
access could affect others too. Cox identifies subscribers by Internet
Protocol addresses, unique identifiers assigned to a home or business,
not necessarily an individual. Blocking an IP address would not just
deprive a repeat infringer of internet access, but also their household
or co-workers. Imagine losing your internet access because your teenager
downloaded a few pirated songs. A single infringer could even lead to an
internet outage for an entire library, school, or hospital.
The trouble is that Cox is not a sympathetic defendant. There is
evidence that when Cox learned of specific instances of repeat copyright
infringement occurring on its network, it increasingly did almost
everything in its power to not act. Cox nominally had a repeat infringer
policy. In theory, this policy led to increasingly severe warning emails
and notices from Cox. That policy required 13 strikes for account
termination, only counted one notice per subscriber per day, and reset
the strike counter every six months. Termination was never automatic
after 13 strikes, and there was no evidence Cox ever terminated a
subscriber’s account without reactivating it. Internal communications at
Cox reflected contempt for copyright law and a desire to maintain
accounts to continue receiving subscription fees.
Cox’s bad intent is why this weighty decision is now before the Supreme
Court. Copyright law has developed a clear rule for technology service
providers. Once you learn of specific infringements, you must act to
limit them if you can. Cox did provide warnings to its users once they
infringed, but warnings are hollow when there is no actual threat of
account termination.
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Cox did not necessarily have to terminate repeat infringers’ accounts,
even after the 13th strike—particularly if they were associated with
organizations such as libraries and schools. But it could have done more
than it did to counter copyright infringement. Beyond mere warnings to
the account holders, Cox could have eventually limited or slowed
internet access. Where applicable, it could have worked with employers
and schools associated with the IP addresses. It could have levied
fines. It could have imposed other actual consequences. And, for the
most egregious cases, Cox could have actually terminated accounts.
Because of Cox’s ill intentions, the Supreme Court may now impose a more
draconian standard on internet providers. Termination of internet access
may become the rule for repeat infringers rather than the rare
necessity. Following oral argument on Dec. 1, the Supreme Court must
delicately thread the needle between upholding copyright owners’ rights
and punishing bad intent while still safeguarding internet access.
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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