ISP says record labels ‘waging war’ on internet, in $1bn appeal
“The music industry is waging war on the internet,” Cox Communications has told a federal appeals court in its effort to overturn a $1 billion damages award for music piracy.
In 2019, the internet service provider (ISP) lost a landmark case brought by record labels including Universal and Sony Music, looking to hold Cox liable for copyright infringement based on the activities of its subscribers.
Cox, which has described the judgment as a “travesty” and the scale of the damages award “egregious”, has been fighting since to overturn the ruling.
The US District Court for the Eastern District of Virginia upheld the $1 billion award in January, leading Cox to bring an appeal to the US Court of Appeals for the Fourth Circuit.
Cox in 'impossible spot'
This week, the ISP filed a lengthy opening brief in its appeal, urging the Fourth Circuit to protect service providers and subscribers alike. According to Cox, if the verdict is upheld, “the internet will never be the same”.
At the core of Cox’s argument is that, if it is held liable for its customers’ pirating of music, it will have to implement wide-scale monitoring which would undermine internet freedom.
Cox told the Fourth Circuit this week: “The legal rules plaintiffs advocate put ISPs in an impossible spot. ISPs will have to boot entire households or businesses off the internet—cutting their lifelines, their livelihoods, and their social connections—based on a few isolated and potentially inaccurate allegations. Or they will have to invade our privacy by developing new capabilities to monitor our internet usage 24/7 to ferret out illegal activity.”
The key issues in the case include both whether Cox should be held liable for its customers’ activity, how much ISPs are in a position to know about infringing activity, and whether the scale of the $1 billion award is justified.
Throughout the brief, Cox lays the blame for music piracy at the door of the peer-to-peer sharing networks such as BitTorrent, rather than service providers. These networks make “online infringement easy and policing infringement hard,” the ISP argues.
“ISPs like Cox cannot selectively block a user from downloading peer-to-peer software or using it to download songs, any more than the phone company can block a user from plotting a crime using the phone,” said the brief.
The ISP also takes issue with the record labels’ argument that it knew of the infringing activity just because it was served copyright infringement notices. If Cox is informed that a user illegally downloaded a song, that doesn’t mean it can be “certain” they will do so again in the future, the ISP argued.
“There is only one way for an ISP to guarantee that an account stops infringing: the nuclear option of terminating the account completely … And no court has ever suggested that an ISP can be categorically liable for failing to take the nuclear option,” the brief said.
‘Excessive’ damages?
Cox also argues that the district court arrived at the ‘excessive’ $1 billion in damages through faulty calculations, by double-counting derivative works and compilations.
The award calculated on a per-work basis, derived from the number of individual works infringed. Cox claims the record labels were able to land multiple $100,000 awards for the same songs, either where they were “derivative” of other works, or awarded per song rather than per album.
Effectively, Cox argues, if a user pirates an album, the rights owner should receive $100,000 in damages for that album, rather than individual songs on it.
“The $1 billion judgment is entirely untethered from both the harm it caused,” the ISP said, describing it as an award of “historic proportions”.
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