Internet provider Cox Communications has been on the sharp end of several piracy lawsuits in recent years.
The biggest hit came four years ago when the Internet provider lost its legal battle against a group of major record labels.
$1 Billion Appeal
A Virginia jury held Cox liable for pirating subscribers because it failed to terminate accounts after repeated accusations, ordering the company to pay $1 billion in damages to the labels. This landmark ruling is currently under appeal.
As part of the appeal, Cox informed the court of a supplemental authority that could support its position. The case in question is Twitter vs. Taamneh, in which the U.S. Supreme Court recently held that the social media platform isn’t liable for ISIS terrorists, who used Twitter to recruit and raise funds.
The Supreme Court rejected the claim that Twitter aided-and-abetted terrorist activity, because it didn’t “consciously and culpably” participate in the illegal activity. According to Cox, the same logic applies in its case, where the ISP was held liable for the piracy activities of subscribers.
“These same aiding-and-abetting principles animate copyright law’s contributory liability doctrine, and they likewise foreclose liability here,” an attorney for Cox informed the court.
Cox argues that the Supreme Court ruling confirms that aiding-and-abetting liability only applies when parties knowingly took part in the activity. That runs contrary to the finding in its own dispute with the record labels, where “culpable expression and conduct” or “intent” were not required.
“Though Twitter arises in a different context, its reasoning applies with full force and supports reversal of the contributory infringement verdict,” Cox added.
The two cases are indeed quite different, but ultimately they are about imposing liability on third-party services. According to Cox, the Twitter terrorist ruling clearly shows that it isn’t liable for pirating subscribers, but the music companies see things differently.
Terrorists vs. Pirates
Earlier this week, the music labels responded in court, countering Cox’s arguments. They argue that the Twitter ruling doesn’t apply to their piracy dispute with Cox, as the cases are grounded in different laws.
While the music industry certainly isn’t happy with pirates, the Cox case is a copyright matter while the Twitter lawsuit fell under the Justice Against Sponsors of Terrorism Act. And for now, pirates are not categorized as terrorists.
“Twitter arose under the Justice Against Sponsors of Terrorism Act. Plaintiffs there identified ‘no duty’ under that terrorism statute requiring defendants ‘to terminate customers after discovering that the customers were using the service for illicit ends’.”
“This case arises under the Copyright Act. This Court has already held that an internet-service provider has a duty to ‘do something’ about known infringers,” the music companies ‘counsel adds.
‘Not So Passive’
After establishing the difference between pirates and terrorists, the music companies point out that Twitter wasn’t directly connected to the misconduct. The platform’s role was more passive and its connection to ISIS was more distant than Cox’s connection to its subscribers.
Cox took a more active role and materially contributed to the pirating activities, which stands no comparison to the Twitter case, plaintiffs argue.
“Cox was not so passive,” the music company counsel writes, adding that the Internet provider “set up sham policies ensuring infringement would continue.”
“Cox knew of specific instances of infringement occurring on its network, tied them to specific users, and chose not to terminate those users to avoid ‘losing revenue from paying subscribers’,” the reply brief adds.
How the court of appeal will interpret the Twitter ruling remains to be seen. With $1 billion in damages on the line, both sides will likely do everything in their power to fight this case to the bitter end, and it may ultimately find its way to the Supreme Court.
—
A copy of Cox’s letter to the court, including the referenced Supreme Court ruling can be found here (pdf). The music companies ‘reply is available here (pdf)
