Cox Seeks Rehearing of 4th Circuit’s Affirmation of Copyright Infringement

Cox Communications’ petition for rehearing en banc of a 4th U.S. Circuit Appeals Court panel’s affirmation of a jury’s finding of willful contributory copyright infringement (see 2403060028) “presents a question of exceeding importance to anyone who cares about access to the internet,” said the petition Tuesday (docket 21-1168).

The question presented is whether an ISP materially contributes to copyright infringement “by continuing to provide a passive internet connection to a home or business knowing that someone is likely to use that connection to infringe,” said the petition. With the panel’s upholding of the jury verdict, the 4th Circuit has become the “first and only” circuit to answer that question in the affirmative, it said.

The “resulting regime” is the “most severe in the country,” said the petition. If an ISP receives more than one accusation that some anonymous person used a specified internet connection to download infringing songs, “it can avoid liability only by swiftly throwing every person in that home or business off the internet,” it said.

In doing so, it would disconnect “the guilty and innocent alike from their schools, their livelihoods, their nanny cams, their news, and everything else they do online,” said the petition. If instead the ISP continues to provide the connection, a jury can find it engaged in culpable conduct “akin to aiding-and-abetting a crime,” it said.

That rule conflicts with U.S. Supreme Court precedent rejecting the notion that internet or cell service providers incur culpability merely for providing their services to the public writ large, said the petition. It also “deepens a circuit split,” it said. En banc review is “therefore warranted,” it said.

Rehearing is also warranted to decide whether a secondary infringer “can be adjudged willful, exposing it to dramatically enhanced statutory damages, merely because it had knowledge of an internet user’s direct infringement,” said the petition. That rule “makes little sense,” because willfulness requires the defendant’s awareness that its own conduct violates the law, it said.

The results yield “an unprecedented framework,” said the petition. The material contribution ruling “ratchets down the culpability required for liability to mere knowledge of subscriber infringement,” it said. Then the virtually identical willfulness standard “collapses the two inquiries so that all contributory infringement is automatically willful infringement,” it said. That makes for “the most draconian approach in the country,” it said: “Rehearing should be granted.”