Cox $1B infringement settlement: Did the players see the whole picture?

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In January 2021, a US Federal Court in Virginia upheld a $1 billion judgement against Cox Communications, for failing to stop users of Cox Internet access services from downloading unlicensed music content.  The 2018 complaint claimed that Cox infringed more than 10,000 copyrights over a period of about a year and a half in 2013 and 2014, each of them valued at nearly $100,000; hence the $1 Billion figure.

More than 50 plaintiff companies claimed that Cox ignored their take-down requests by capping the number of take-down notices it accepted from rights-holders, thereby ‘blinding itself’ to instances of infringement.

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Understandably, Cox called the amount unjustified, transferring blame to unscrupulous broadband access customers.  But the plaintiffs also contended that rather than permanently terminating offenders, Cox imposed ‘soft terminations’ or did nothing; thereby prioritizing “its own profits over its legal obligations.”

EFF weighs in for the defendant

In an interesting plot twist, The Electronic Frontier Foundation (EFF), acting on behalf of itself, the American Library Association and several other advocacy groups, filed a ‘friend of the court’ (amici) brief effectively in support of Cox in early June, saying that “terminating an ISP account doesn’t just cut off an allegedly infringing subscriber.  It potentially cuts off every household member or – in the case of a school, library, or business – every student, faculty member, patron, and employee who shares the internet connection.”

Basically, it says that the Plaintiff and the Court misunderstood the relationship between ISPs and the public, who increasingly rely upon the Internet to meaningfully participate in modern society; and that removal of access is more serious than acts of infringement.

Read the EFF et al amicus filing

Why it matters

The EFF-et-al brief cites precedent that “liability for copyright infringement applies when a party…possessed the right and ability to supervise the infringing activity.” The cited precedent was used to establish a different point – that “‘some level of principal-agent relationship’ must exist between the liable party and the actual infringer.”

The brief also states that “ISPs cannot meaningfully … supervise the manner in which subscribers can use the internet.”  Actually, ISPs do have the ability to supervise both the subscriber’s use of the Internet, including sites and files accessed, location, device, and more.  ISPs also can (and do) apply piracy detection and anti-piracy technology which Cox could presumably have used.

A different outcome?

This article does not intend to weigh in on the merits of the arguments by plaintiff, defendants or the friends of the court.

But the complaint, the decision, and the amicus briefs seem to be slient about remedies in which the plaintiffs could help ISPs define and implement policies and technologies to detect piracy and act against it.

Certainly these would cost less than $1 Billion. In that light, EFF & co’s ‘free speech’ and ‘defense of democracy’ arguments may ring somewhat hollow.

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