Aggressive ISP Terminations Would Punish ‘Innocent and Guilty Alike’: Amicus Brief

The 4th U.S. Circuit Appeals Court should grant Cox Communications’ March 5 petition for rehearing en banc (see 2403070003) because the panel’s holding that Cox is guilty of willful contributory copyright infringement will have an adverse effect on “innocent” internet users, said Public Knowledge and the Electronic Frontier Foundation in an amicus brief Tuesday (docket 21-1168).

The PK/EFF amicus brief was the second in as many days to support Cox’s petition for rehearing (see 2403120030). The American Library Association, the Association of Research Libraries and Library Futures, a nonprofit focused on policy issues that threaten libraries in the digital age, also joined in the PK/EFF brief.

Cox is challenging the 4th Circuit panel’s affirmation of a jury’s finding of willful contributory copyright infringement on grounds that Cox could have done more to stop its internet customers from stealing protected music, such as by terminating the accounts of known infringing users. But every use of the internet requires an internet service provider account, and terminating that service, as copyright owners would have ISPs do, “means withdrawing an essential tool for participation in daily life,” said the amicus brief.

Terminating an ISP account “doesn’t just cut off an allegedly infringing subscriber,” said the brief. It potentially cuts off every household member or every student, faculty member, patron and employee who shares the internet connection, it said. With little or no competition among broadband ISPs in many areas of the country, “those users may have no other way to connect,” it said.

The stakes are “enormous,” said the brief. If allowed to stand, the panel’s holdings concerning contributory infringement and willfulness “will force ISPs to terminate more subscribers with less justification to avoid staggering liability,” it said.

The panel’s “misguided approach” to contributory infringement and willfulness is likely to have a “profound effect” on all internet users, said the brief. ISPs will respond to the “lower threshold” for secondary liability and exposure to unbounded damage awards “by increasing account terminations, cutting off users’ ability to meaningfully participate in economic and civic life,” it said.

More aggressive termination policies “would punish the innocent and guilty alike,” said the brief. The record shows many instances of alleged infringement associated with accounts for universities, hospitals, local government agencies and “entire municipalities,” it said. Those institutions are sources of internet access for “millions,” it said.

The same holds true for public libraries, upon which 77% of Americans without internet in their homes rely for online access, said the brief. Users of libraries’ computers and internet connections “are more likely to be young, Black, female, and lower income,” it said. They’re also likely to live in rural communities, it said.

Cox was “rightly hesitant” to terminate accounts like those, said the brief. “Given a potentially $1 billion damage award, combined with the panel’s lower threshold for contributory infringement liability, neither Cox nor other ISPs would hesitate again,” it said.

Even for residential accounts, the consequences of terminating internet access wouldn’t be confined to “individual repeat infringers,” said the brief. In other file-sharing cases, rights holders have estimated that 30% of the names of account holders identified as infringers weren’t responsible for the alleged infringement, it said.

Multi-user accounts are increasingly common in “shared households,” said the brief. Since non-white, low-income individuals are more likely to live in shared households and share broadband subscriptions, “stepped-up termination would worsen the racial and economic digital divide,” it said.

Those effects “are exacerbated by the lack of competition in the broadband market,” said the brief. More than 75 million people nationally have access “to just one broadband provider,” it said. In these regions, account termination by a single ISP means loss of broadband internet access entirely, it said.

Though mobile broadband services do exist, “they are incomplete substitutes for wireline broadband,” said the brief. Aside from lower average speeds, mobile broadband plans “often come with low monthly data caps that users quickly exceed if they use mobile data for necessary day-to-day functions, such as telecommuting or remote education,” it said. Users must then choose between paying overages -- “a financial strain on low-income subscribers in particular” -- or losing internet access, it said. It’s also difficult, if not impossible, “to fill out many job applications on a smartphone,” it said.