Copyright Owners Have ISPs ‘Between a Rock and a Hard Place': Frontier Amicus Brief

If ever there were a petition for rehearing en banc that should be granted, it's Cox Communications’ petition in the 4th U.S. Circuit Court of Appeals, said Frontier Communications’ amicus brief Monday (docket 21-1168) in support.

Cox is challenging the 4th Circuit panel’s affirmation of a jury’s finding of willful contributory copyright infringement on grounds that Cox could’ve done more to stop its internet customers from stealing protected music, such as by terminating the accounts of known infringing users (see 2403070003).

Frontier is a party to pending litigation brought by many of the same copyright owners as in the case against Cox, said its brief. Frontier thus “has a keen interest that the courts strike the proper balance between the rights of copyright owners, internet users, and internet service providers,” it said.

Never before has Frontier “weighed in on a case at this stage of the proceedings,” said the brief. But in light of the “extraordinary importance” of the recurring issues that the Cox petition raises, plus the “broad fallout” of the panel’s decision, Frontier “feels compelled to do so here,” it said.

The stakes for ISPs and their customers couldn’t be higher, said the brief. That’s “not hyperbole,” it said. The panel’s “flawed decision” threatens whether, how and at what cost companies “will be able to provide essential internet services to millions of customers,” it said.

The logic of the panel’s holding “goes well beyond copyright infringement,” said the brief. It “drives a wrecking ball through the ordinary limits of secondary liability,” in direct conflict with U.S. Supreme Court precedent, it said. The important policy implications of the panel’s opinion for all online service providers and internet users “cry out” for the en banc court’s attention, it said.

A finding of contributory copyright infringement arising from a company’s continued provision of internet service, even knowing of wrongdoing by specific customers, can’t be “squared” with the 2023 SCOTUS decision in Twitter v. Taamneh, or the 2005 decision in MGM Studios v. Grokster, or the 1984 Sony Betamax decision, said the brief. Twitter is the Supreme Court’s most recent application of the “controlling principles of secondary liability to providers of online communication services,” it said. They’re the same common law principles as for contributory copyright infringement, it said.

Yet the panel’s decision against Cox doesn’t even discuss Twitter, said the brief. Other federal courts, with the benefit of full briefing and argument, “are poised in pending cases to consider and apply Twitter to the question at hand,” it said. If not addressed “here and now,” the 4th Circuit’s voice won’t be heard “in this extremely important and recurring context just as other courts begin to weigh in,” it said.

'Wildly Unpopular'

ISPs like Frontier “are caught between a rock and a hard place,” said the brief. Copyright owners rarely sue alleged direct infringers “because pursuing individual internet users is wildly unpopular,” it said. Nor do copyright owners sue peer-to-peer file-sharing companies or piracy websites that are, if anyone is, “the ones materially contributing to individuals’ direct copyright infringement,” it said.

That point “merits heavy emphasis,” said the brief. Copyright owners conspicuously don’t seek relief, be it injunctive or monetary, “against the bittorrent companies or online piracy platforms that give consumers the tools to download and share works or that themselves are the means to do so,” it said.

Copyright owners instead demand that ISPs “police the internet for them,” said the brief. Copyright owners then demand tens of millions of dollars “when we mere conduits to the internet do not do so to their satisfaction,” it said.

Copyright owners to this point have successfully painted a “grossly inaccurate picture” of what an ISP learns “by virtue of notices of alleged infringement it receives,” said the brief. Those notices don’t “in any way, shape, or form alert, let alone prove, that a copyrighted work has been shared with any third party,” it said. Nor do they “foretell whether a customer will in the future commit copyright infringement,” it said.

No one can detect if a consumer “has in fact shared a work with any third party over the internet, to whom it might have been shared, or when, or if it ever will be,” said the brief. The most that a notice of alleged infringement indicates is that copyright owners have spotted, through their own use of peer-to-peer protocols, that a device connected to a specific IP address “has the same bittorrent software running and has a particular song or movie saved in that program’s folder,” it said.

Even if someone purposefully downloads a song from a piracy website, most people don’t have a clue that bittorrent file-sharing software has “surreptitiously” installed itself on their computer or that “it takes on a life of its own,” said the brief. Bittorrent programs “can act like malware that attaches to devices of unsuspecting internet users who have no intention of sharing music with anyone else,” it said.

'Excessively Harsh Result'

Copyright owners nonetheless insist that those users’ internet service “be permanently terminated,” said the brief. That’s “an excessively harsh result,” particularly for consumers who reside in hard-to-reach places or who have only one option for service, it said.

After advising customers that copyright owners have sent notices of alleged infringement concerning their accounts, Frontier “routinely receives responses from confused consumers who explain that they were asleep at the time the notice was generated in the middle of the night,” said the brief. All the while, the alleged infringement may have been the fault of a neighbor who accessed their Wi-Fi without permission, it said.

But now the account holder “is wrongly accused of repeat online piracy,” and the ISP is charged with aiding and abetting that unlawful conduct, said the brief. If the ISP doesn’t take the “severe step” of terminating those customers’ accounts based on copyright owners’ “bare allegations,” it’s “potentially on the hook for enormous judgments,” it said.

An ISP doesn’t remotely provide “a metaphorical hammer to customers knowing that they will use it other than to pound a nail,” as the panel posited, said the brief. Taking the panel’s metaphor further, an ISP “simply shuttles passengers to the hardware store,” it said. Which aisle customers stroll, what tools they acquire, or how they might use them can’t be “fairly pinned” on the transportation service if it doesn’t take the affirmative step of kicking people off the bus after being alerted that in the past that they may have “bought a hammer and broken a window with it,” it said.

The “high stakes” of the copyright owners’ “unsound theory” of contributory liability, and the panel’s endorsement of it, can’t be “overstated,” said the brief. Copyright owners seek “astronomical amounts” from ISPs simply for providing “lawful services to the public at large, a tiny fraction of whom may abuse their accounts,” it said.

Those “staggering” monetary awards are “crushing” even to the biggest of corporations, said the brief. They also threaten “whether or at what cost law-abiding companies can continue to provide internet services in a post-Covid world where every family relies on the internet for school, work, virtual meetings, social interaction, entertainment, daily life,” it said.

Faced with such “grave economic risk,” ISPs “may have to reevaluate where and whether they provide service or how much more to charge customers to pass along the costs of an unfair and imbalanced copyright enforcement scheme,” said the brief. The “unavoidable effects” of the panel’s decision affirming Cox’s contributory infringement liability “are directly contrary to the public interest,” it said.