Supreme Court Skeptical of $1 Billion Copyright Ruling Against Cox Communications

Teh arguments yesterday, December 1, in Cox Communications v. Sony Entertainment confronted a central feature of internet behavior this century: users’ strong interest in consuming copyrighted media – movies, music, and more – without permission.Lower courts held Cox liable for its customers’ infringement, totaling over a billion dollars. Based on yesterday’s arguments, the justices likely won’t uphold that outcome.

Both sides have strong arguments. Sony argues Cox received millions of notices about customers infringing copyrights and continued service even when the repeated notices clearly showed continued infringement.A law offers a “safe harbor” protecting internet service providers like Cox if they have a “reasonable” practice of terminating repeat infringers, but the lower courts found Cox didn’t qualify because it rarely terminated accounts.

Cox contends it hasn’t supported or encouraged infringement,and there’s little it can practically do to stop it besides terminating service. They argue termination isn’t a reasonable response, especially for users with the most repetitive infringement – often universities, hospitals, and military bases.

The justices had sharp questions for both sides. Several suggested that accepting Cox’s argument – that an ISP can’t be held responsible for customers’ actions without direct wrongdoing – would render the safe harbor meaningless. If Cox faces no liability even after failing to meet safe harbor requirements (as they did here), what’s the point of having one? However, by the argument’s end, a majority of justices seemed unwilling to accept Paul Clement’s position on behalf of Sony.

Justice samuel Alito posed the most pointed questions, telling Clement: “I really don’t see how your position works in th[e university] context but maybe you can explain how it could.” Specifically, he