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Supreme Court wants US input on whether ISPs should be liable for users’ piracy [arstechnica.com]:

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The Supreme Court signaled it may take up a case that could determine whether Internet service providers must terminate users who are accused of copyright infringement. In an order [supremecourt.gov] issued today, the court invited the Department of Justice's solicitor general to file a brief "expressing the views of the United States."

In Sony Music Entertainment v. Cox Communications, the major record labels argue that cable provider Cox should be held liable for failing to terminate users who were repeatedly flagged for infringement based on their IP addresses being connected to torrent downloads. There was a mixed ruling at the US Court of Appeals for the 4th Circuit as the appeals court affirmed a jury's finding that Cox was guilty of willful contributory infringement but reversed a verdict on vicarious infringement "because Cox did not profit from its subscribers' acts of infringement."

That ruling vacated [arstechnica.com] a $1 billion damages award and ordered a new damages trial. Cox and Sony are both seeking a Supreme Court review. Cox wants to overturn the finding of willful contributory infringement, while Sony wants to reinstate the $1 billion verdict.

The Supreme Court asking for US input on Sony v. Cox could be a precursor to the high court taking up the case. For example, the court last year asked the solicitor general [arstechnica.com] to weigh in on Texas and Florida laws that restricted how social media companies can moderate their platforms. The court subsequently took up the case [arstechnica.com] and vacated lower-court rulings [arstechnica.com], making it clear that content moderation is protected by the First Amendment.

Record labels vs. ISPs

Cox has said [arstechnica.com] that letting the piracy ruling stand "would force ISPs to terminate Internet service to households or businesses based on unproven allegations of infringing activity, and put them in a position of having to police their networks." Cox said that ISPs "have no way of verifying whether a bot-generated notice is accurate" and that even if the notices are accurate, terminating an account would punish every user in a household where only one person may have illegally downloaded copyrighted files.

Record labels urged the court [supremecourt.gov] to reinstate the vicarious infringement verdict. "As the District Court explained, the jury had ample evidence that Cox profited from its subscribers' infringement, including evidence 'that when deciding whether to terminate a subscriber for repeat infringement, Cox considered the subscriber's monthly payments,' and 'Cox repeatedly declined to terminate infringing subscribers' Internet service in order to continue collecting their monthly fees,'" the record labels' petition said.

Another potentially important copyright case involves the record labels and Grande, an ISP owned by Astound Broadband. The conservative-leaning US Court of Appeals for the 5th Circuit ruled [arstechnica.com] last month that Grande violated the law by failing to terminate subscribers accused of being repeat infringers. The 5th Circuit also ordered a new trial on damages because it said a $46.8 million award was too high. Grande and the record labels are both seeking en banc rehearings [arstechnica.com] of the 5th Circuit panel ruling.

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But will they listen?

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