December 2015 a Virginia federal jury held Internet provider Cox Communications responsible for the copyright infringements of its subscribers.
The ISP refused to disconnect alleged pirates and was found guilty of willful contributory copyright infringement. In addition, it was ordered to pay music publisher BMG Rights Management $25 million in damages.
Cox has since filed an appeal and this week it submitted an additional piece of evidence from the US Supreme Court, stating that this strongly supports its side of the argument.
Last week the Supreme Court issued an important verdict in Packingham v. North Carolina, ruling that it’s unconstitutional to bar convicted sex offenders from social media. The Court described the Internet as an important tool for people to exercise free speech rights.
While nothing in the ruling refers to online piracy, it could turn out to be crucial in the case between Cox and BMG. The Internet provider now argues that if convicted criminals have the right to use the Internet, accused file-sharers should have it too.
“Packingham is directly relevant to what constitute ‘appropriate circumstances’ to terminate Internet access to Cox’s customers. The decision emphatically establishes the centrality of Internet access to protected First Amendment activity..,” Cox writes in its filing at the Court of Appeals.
“As the Court recognized, Internet sources are often ‘the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge’.”
Citing the Supreme Court ruling, Cox notes that the Government “may not suppress lawful speech as the means to suppress unlawful speech.” This would be the case if entire households lost Internet access because a copyright holder accused someone of repeated copyright infringements.
“The Court’s analysis strongly suggests that at least intermediate scrutiny must apply to any law that purports to restrict the ability of a class of persons to access the Internet,” ISP writes (pdf).
In its case against BMG, Cox was held liable because it failed to take appropriate action against frequent pirates, solely based on allegations of piracy monitoring outfit Rightscorp. Cox doesn’t believe these one-sided complaints should be enough for people to be disconnected from the Internet.
If convicted sex offenders still have the right to use social media, accused pirates should not be barred from the Internet on a whim, the argument goes.
“And if it offends the Constitution to cut off a portion of Internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA — which effectively invokes the state’s coercive power to require ISPs to terminate all Internet access to merely accused infringers — cannot stand,” Cox writes.
Whether the Court of Appeals will agree has yet to be seen, but with the stakes at hand this issue is far from resolved. In addition to the case between BMG and Cox, the MPAA recently filed a lawsuit against Grande Communications, which centers around the same issue.
