Supreme Court Schedules for December

Photo Credit: Colin Lloyd

The Supreme Court has scheduled oral hearings in December regarding the ongoing legal battle between Sony Music and ISP Cox Communications.

In the continuing saga of the legal battle between internet service provider (ISP) Cox Communications and Sony Music, the U.S. Supreme Court is scheduled to hear oral arguments on December 1.

Cox seeks to overturn a decision by the U.S. Court of Appeals for the Fourth Circuit that affirmed a billion-dollar judgement against Cox after a jury determined that Cox was liable for contributory copyright infringement for the piracy committed by its users.

According to the Fourth Circuit, an internet service provider is liable for material contribution to copyright infringement when it knows its users are infringing and does not terminate access. Further, the mere knowledge of direct infringement can count as “willful” contributory infringement, which can entitle the infringed party to “enlarged” statutory penalties of up to $150,000 per violation. That’s compared to a maximum of $30,000 if not considered “willful.”

Afterward, the Supreme Court received 21 amicus briefs over the matter, 20 of which favored Cox’s argument. Only one, filed by the American Intellectual Property Law Association (AIPLA), favored Sony and the Fourth Circuit’s decision. Of course, that’s not counting the brief filed by Sony Music and other major labels earlier this week.

The AIPLA’s amicus brief argued that the “mere knowledge” standard strengthens copyright enforcement while affording courts flexibility to impose secondary liability based on “the degree to which a defendant’s acts and omissions materially contributed” to infringement by another party.

This will not necessarily expand liability for all ISPs, the AIPLA insists, but will appropriately punish platforms that fail to take affirmative steps to mitigate users’ infringement. The AIPLA also approves of a “willfulness” ruling when an ISP knew of users’ infringement but took no action, such as terminating their accounts.

The other 20 amici came from tech companies, think tanks, civil society organizations, and even the United States government. They argue that a “mere knowledge” standard will expose ISPs to “crippling liability.” Each entity that opposes the Fourth Circuit’s decision urges the implementation of an affirmative contribution standard that holds platforms liable only when they know about infringement and affirmatively contribute to it. Some point to recent decisions consistent with this standard, including a case involving terrorists using Twitter to fundraise back in 2023.

While the 20 amici in opposition offer slightly different reasons for their arguments, all urge that an “affirmative contribution standard” upholds intellectual property rights while protecting free speech and access to “the essentials of modern life provided by the internet.”

Now, both sides will have the chance to give their arguments in person before the Supreme Court at a hearing set for December 1.