4th Circuit's Piracy Decision 'Imperils the Internet,' ISPs Tell SCOTUS

The 4th U.S. Circuit Court of Appeals' affirmation of a jury's finding of willful contributory copyright infringement by Cox Communications (see 2402210027) "imperils the future of the internet," ISP providers told the U.S. Supreme Court in an amicus brief Tuesday (docket 24-171). ISPs Altice, Frontier, Lumen and Verizon -- supporting Cox's cert petition filed last month (see 2408160034) -- said the 4th Circuit decision exposes ISPs "to massive liability if they do not carry out mass internet evictions." They said such overly broad terminations based on allegations of copyright infringement "can be dangerous," as they can affect the subscriber's family, business or community. The automated processes copyright holders use to flag copyright infringement on peer-to-peer networks are well known to be flawed, they said. The ISPs said copyright owners can use evidence of online infringement to serve subpoenas that get them the identity of the ISP customer whose internet access was used for infringement, and then they can pursue direct actions against those pirates. Music labels Sony Music and others, the respondents in the Cox cert petition, filed their own cert petition in August asking SCOTUS to settle the circuit court split over how a defendant must benefit from direct infringement in order to be vicariously liable. The 4th has held that liability happens when the defendant expects commercial gain from the act of infringement itself, while the 1st, 2nd, 3rd, 7th and 9th circuits have held that liability comes when the defendant expects commercial gain from the enterprise in which the infringement occurs, the labels said (docket 24-181). Lower courts have long understood that the Copyright Act allows copyright owners to pursue claims for vicarious liability where the defendant expects to profit from the broader operation in which infringement occurs, they said. But while a jury found that Cox had vicariously infringed, the 4th Circuit reversed the vicarious-liability finding, ruling that the profit requirement demands proof that the defendant profits directly from the acts of infringement for which it is being held accountable, they said.