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posted by janrinok on Sunday February 25, @01:24AM   Printer-friendly
from the yeah,-no,-yeah dept.

"Cox did not profit from its subscribers' acts of infringement," judges rule:

A federal appeals court today overturned a $1 billion piracy verdict that a jury handed down against cable Internet service provider Cox Communications in 2019. Judges rejected Sony's claim that Cox profited directly from copyright infringement committed by users of Cox's cable broadband network.

Appeals court judges didn't let Cox off the hook entirely, but they vacated the damages award and ordered a new damages trial, which will presumably result in a significantly smaller amount to be paid to Sony and other copyright holders. Universal and Warner are also plaintiffs in the case.

"We affirm the jury's finding of willful contributory infringement," said a unanimous decision by a three-judge panel at the US Court of Appeals for the 4th Circuit. "But we reverse the vicarious liability verdict and remand for a new trial on damages because Cox did not profit from its subscribers' acts of infringement, a legal prerequisite for vicarious liability."

If the correct legal standard had been used in the district court, "no reasonable jury could find that Cox received a direct financial benefit from its subscribers' infringement of Plaintiffs' copyrights," judges wrote.

The case began when Sony and other music copyright holders sued Cox, claiming that it didn't adequately fight piracy on its network and failed to terminate repeat infringers. A US District Court jury in the Eastern District of Virginia found the ISP liable for infringement of 10,017 copyrighted works.

Cox's appeal was supported by advocacy groups concerned that the big-money judgment could force ISPs to disconnect more Internet users based merely on accusations of copyright infringement. Groups such as the Electronic Frontier Foundation also called the ruling legally flawed.

"When these music companies sued Cox Communications, an ISP, the court got the law wrong," the EFF wrote in 2021. "It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business's account after a small number of accusations—perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered. If not overturned, this decision will lead to an untold number of people losing vital Internet access as ISPs start to cut off more and more customers to avoid massive damages."

In today's 4th Circuit ruling, appeals court judges wrote that "Sony failed, as a matter of law, to prove that Cox profits directly from its subscribers' copyright infringement."

A defendant may be vicariously liable for a third party's copyright infringement if it profits directly from it and is in a position to supervise the infringer, the ruling said. Cox argued that it doesn't profit directly from infringement because it receives the same monthly fee from subscribers whether they illegally download copyrighted files or not, the ruling noted.

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  • (Score: 5, Insightful) by sigterm on Sunday February 25, @04:07AM (5 children)

    by sigterm (849) on Sunday February 25, @04:07AM (#1346149)

    Why, exactly, would it be Cox' job to enforce another company's copyright claims?


    Can you sue the postal service if someone sends a threatening letter?

    Can you sue the phone company if someone becomes a victim of a fraudulent call?

    Can you sue an airline if a criminal travels to a city with stolen items in his luggage?

    (Well, of course you can sue, but all you'd get would be the privilege of having to pay the defendant's attorney's fees.)

    • (Score: 3, Informative) by Ox0000 on Sunday February 25, @04:39PM (4 children)

      by Ox0000 (5111) on Sunday February 25, @04:39PM (#1346189)

      IANAL but let me armchair-lawyer you:

      You can definitely sue. And if you can show negligence on their part (but you have to actually prove that), then you may even pevail.

      To expand on your examples:

      • If the postal service sees white powder fall out of an envelope which tests positive for anthrax and then it still delivers it to the recipient instead of warning the authorities, then there's malice or even criminal negligence.
      • If the phone company knew all along that the origin of the scam call were scammers, then you can claim that they aided and abetted, or even are accomplices.
      • If the airline knows that the criminal used a fake name when booking their ticket, and does not flag that in the PNR that is created for that passenger, then you can sue if you were a direct victim of the criminal (you have to have "standing" you see). And, you may now even have an opportunity for case in federal court, since the criminal crossed state borders (which is an assumption because a flight was involved, which is _typically_ inter-state).

      I'm not saying it's easy to prove what you'll need to prove, but the law is weird; you can sue and even win in the oddest of cases.

      In a strange way, this is somewhat of a downstream effect of ISPs fight against Net Neutrality. If strong net neutrality were a thing (ISPs are just carriers, provide only the tubes) then I think there would be less of a case to be made to be able to sue Cocks successfully ("because we don't police the tubes, your honor, we just rent them out"). But since ISPs didn't want NN, and wanted to be able to control (and thus have liability) for what flows through their pipes ("we look at the content and actively control the traffic flow or even prevent things from flowing because of $$$"), they are indeed a non-non-viable target (double negative there). Whether the plaintiff wins, that's a whole other deal, but Cocks as a target is not totally non-viable.

      • (Score: 2, Touché) by weirsbaski on Sunday February 25, @05:56PM (3 children)

        by weirsbaski (4539) on Sunday February 25, @05:56PM (#1346205)

        If the postal service sees white powder fall out of an envelope which tests positive for anthrax and then it still delivers it to the recipient instead of warning the authorities, then there's malice or even criminal negligence.

        I think your analogy is a bit off. It's more like suing the postal service for not proactively checking every envelope for evidence of white powder, so that they can warn the authorities.

        • (Score: 3, Interesting) by Ox0000 on Sunday February 25, @06:28PM (2 children)

          by Ox0000 (5111) on Sunday February 25, @06:28PM (#1346212)

          What makes you think they aren't? 9/11 had all sorts of weird side effects.
          I know for a fact, for instance, that USPS stores metadata about your letters (from, to, when, weight, envelope size, pic of front and back). There's a reason they do this and it's not because someone has a fetish for and gets off on pictures of envelopes...

          • (Score: 2) by cereal_burpist on Monday February 26, @04:41AM (1 child)

            by cereal_burpist (35552) on Monday February 26, @04:41AM (#1346275)

            They do it for their "Informed Delivery" service. And also (possibly) for internal metrics, performance stats, etc.



            • (Score: 2) by Ox0000 on Monday February 26, @02:25PM

              by Ox0000 (5111) on Monday February 26, @02:25PM (#1346307)

              Exactly, and it's easier to do it for all rather than for _just_ informed delivery. It's the same deal as why you're included in the surveillance capitalism trawling: you're literally not important enough to be excluded.

              I also know of a handful of cases where this information was shared with LEOs for post-factum tracing.

  • (Score: 3, Interesting) by JoeMerchant on Sunday February 25, @02:54PM

    by JoeMerchant (3937) on Sunday February 25, @02:54PM (#1346183)

    Although we all know that "flat rate unlimited bandwidth" is a lie... it's a useful lie in arguments such as this.

    If there were significant "pay per byte" plans (like GoogleFi data, 5G for $0.01/MB), then Sony could make the argument that pirates consume significantly more bandwidth contributing significantly more profits to the ISPs, particularly since the cost of delivering the first byte is so high as compared to the cost of delivering subsequent bytes - so there's higher profit in higher volumes of data purchased.

    🌻🌻 []