2 Cases Show Supreme Court Isn’t Holding ISPs Responsible for Piracy

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Cox Communications and Grande Communications win legal victories in music copyright cases.

Two weeks ago, the Supreme Court ruled that ISP giant Cox Communications couldn’t be held liable for a billion-dollar judgment over music piracy in a case brought by Sony. On Monday, by sending another case back to a circuit court involving Grande Communications and music companies, including Sony, for reconsideration, the court seems to be reinforcing the idea that internet service providers can’t be held liable for their customers’ copyright infringement.

The Supreme Court relied on the precedent from the first case to send the second back, reinforcing the earlier decision. 

Grande Communications is a Texas-based subsidiary of Astound Business Solutions.

A Sony Music representative didn’t immediately respond to a request for comment.  

The two cases back-to-back appear to suggest that copyright owners, like music companies, can’t expect to be compensated by broadband providers (including, presumably, wireless companies such as AT&T and Verizon) that have customers who engage in intellectual property theft across their networks. 

Music What this means for ISPs and customers

Eric Goldman, an associate dean for research and professor at Santa Clara University School of Law, says these decisions buck prior cases. 

“The Cox ruling upended decades of fairly well-settled precedent without any clear explanation of why the Supreme Court chose to reset the rules,” he said. “At minimum, the Supreme Court made clear that copyright owners have overreached with their copyright claims against ISPs for user-caused infringement. Thus, the Supreme Court’s message to copyright owners is that they need to be more reasonable and less demanding in their dealings with ISPs.”

Goldman said he doesn’t expect the case to have much impact on internet customers. In the face of less resistance, it’s likely ISPs will maintain their current policies and restrictions on piracy, although another legal expert, David B. Hoppe, founder of Gamma Law, said some might reduce the resources they spend on identifying or terminating accounts of content pirates.

“However, the decision does not reduce the liability exposure of websites that facilitate or encourage infringement, and probably does not affect the ability of copyright owners to cause hosting providers to terminate websites that are facilitating or encouraging infringement,” Hoppe said.

The court, he said, drew a clear distinction between passive ISPs who serve as intermediaries of content and those who actively facilitate or encourage piracy or show intent to engage in copyright infringement. 

Something that remains to be seen is whether the Supreme Court’s judgment favoring ISPs also extends to web hosts that facilitate sites that engage in mass-scale piracy of material such as music, movies and video games.

“Already, we’ve seen one lower court imply that the Supreme Court holding only applies to ISPs and not web hosts, even though the Supreme Court opinion did not make that distinction,” Goldman said.