The major record labels are urging the U.S. Supreme Court to uphold their billion-dollar piracy lawsuit against Cox Communications, blasting the telecom giant for invoking “innocent grandmothers” in its appeal to the high court.
The massive copyright case — in which Universal Music Group (UMG), Sony Music Entertainment and Warner Music Group (WMG) won a $1 billion verdict in 2019 — saw a lower court hold Cox itself liable over allegations of widespread illegal downloading by its users.
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After the justices agreed to tackle the case, Cox argued in August that the lawsuit “jeopardizes internet access for millions of users.” But in their own response on Wednesday (Oct. 15), the labels mocked Cox’s “breathless” warnings.
“While Cox waxes poetic about the centrality of internet access to modern life, it neglects to mention that it had no qualms about terminating 619,711 subscribers for nonpayment over the same period,” the labels wrote. “And while Cox stokes fears of innocent grandmothers and hospitals being tossed off the internet for someone else’s infringement, Cox put on zero evidence that any subscriber here fit that bill.”
UMG, Sony and WMG teamed up to sue Cox in 2018, arguing the broadband provider should be held liable for alleged widespread wrongdoing committed by its users. The labels said Cox had ignored hundreds of thousands of infringement notices and had never permanently terminated a single subscriber accused of stealing music.
ISPs are typically shielded from such claims by the Digital Millennium Copyright Act (DMCA), but a judge ruled that Cox had forfeited that protection by failing to terminate people who were repeatedly accused of piracy. With Cox stripped of immunity, jurors held the company liable in December 2019 for infringing 10,017 separate songs and awarded the labels more than $99,000 per song — adding up to a whopping $1 billion.
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Last year, a federal appeals court ordered the award recalculated, ruling that aspects of the verdict were improper. But the appeals court also upheld other parts, and Cox is still facing the potential of a very large penalty when it is reissued.
In June, the Supreme Court granted Cox’s petition to review that ruling. That move came after the U.S. Department of Justice told the justices to do so, warning that the ruling against Cox could “cause numerous non-infringing users to lose their internet access.”
In its opening brief last month, Cox adopted a similar argument, warning that a ruling for the music companies might force ISPs to take aggressive measures against their subscribers out of fear of huge liability.
“If allowed to stand, the [lower court]’s one-two punch will yield mass evictions from the internet,” the company wrote. “ISPs confronting steep penalties will have no choice but to terminate the connections of homes, barracks, hospitals and hotels, upon bare accusation.”
But in Wednesday’s response, the labels said those arguments “ignore the record and distort the law.” Far from random grandmas, the labels say Cox knew that the individual subscribers at issue in the case were breaking the law and chose not to terminate them because it “wanted to keep the money flowing in.”
“Cox made a deliberate and egregious decision to elevate its own profits over compliance with the law, supplying the means for massive copyright infringement to specific users that it knew were habitual offenders,” the labels write.
The case will be argued before the justices at some point in the next few months, with a ruling expected early next year.
