By John Fritze, CNN
(CNN) — The Supreme Court appeared sympathetic Monday to an internet service provider locked in a copyright battle with the music industry that some warn could leave millions of Americans disconnected and turn companies that provide connectivity into “internet police.”
At issue are peer-to-peer file-sharing protocols like BitTorrent that allow users to download pirated music. The nation’s largest record labels are attempting to hold internet providers liable for copyright infringement because they declined to cut off online access to users they knew were downloading bootlegged music.
During nearly two hours of argument, the court appeared to be leaning toward the internet companies – perhaps on narrow grounds. The practical implications of the music industry’s position – such as potentially disconnecting members of group internet accounts or throttling the speed on university campuses – appeared to give at least a few of the justices pause.
“I just don’t see how it’s workable at all,” Justice Samuel Alito, a member of the court’s conservative wing, said at one point.
Cox Communications, an ISP that is appealing a ruling in favor of the music labels, warned the justices that making providers liable for the online conduct of customers would lead to a crackdown that would “yield mass evictions from the internet,” terminating connections at “homes, barracks, hospitals, and hotels, upon bare accusation” of copyright infringement by creators.
“The consequences of plaintiffs’ position are cataclysmic,” Joshua Rosenkranz, representing Cox, told the court, and would effectively require ISPs to “cut off the internet not just for the accused infringer but for anyone else who happens to use the same connection.”
That, Rosenkranz said, could mean shutting off access to “entire towns, universities or hospitals.”
Most of the court also posed challenging questions for Cox. In particular, Justice Amy Coney Barrett pressed the ISP on whether its theory would allow it to escape liability even if it refused to switch off access to users who were known to be engaged in child trafficking. Rosenkranz acknowledged that under his legal theory of the court’s earlier decisions, the company could not be held liable for aiding and abetting that activity.
Sony Music Entertainment and the other music companies that sued Cox say the ISP was more than an innocent bystander and was instead enabling “habitual offenders” to maximize profits. While Cox “waxes poetic” in its brief about the importance of the internet, Sony argued, “it neglects to mention that it had no qualms about terminating 619,711 subscribers for nonpayment over the same period that it terminated just 32” for serial copyright abuse.
Paul Clement, representing the music industry, argued that Cox is attempting to stoke fear by overstating the impact of cutting off people who are known infringers.
“If Cox is right on the law,” Clement said, “then Cox could take tens of thousands of copyright notices and throw them in the trash.”
The companies Clement represents hold the rights to many of America’s most recognizable singers and songwriters, according to legal papers, including Bob Dylan, Bruce Springsteen, Beyoncé, Eminem, Eric Clapton and Gloria Estefan.
Justice Neil Gorsuch, also a conservative, repeatedly suggested that his colleagues side narrowly with Cox and ask the lower court that ruled for the music industry to reconsider that decision under a different standard. Gorsuch said that the law around “secondary liability,” for companies providing a service to the public that is sometimes misused by the public, is murky.
“Isn’t that a flag on the field for us?” Gorsuch asked.
It’s also the case that the Supreme Court has repeatedly looked for narrow outcomes in cases with the potential to upend the internet.
“The internet is so amorphous,” said liberal Justice Sonia Sotomayor, underscoring the potential unknown ramifications of requiring ISPs to cut off access to known copyright infringers.
“We’re being told that ISPs only know who their customer is, and their customer could be a region,” Sotomayor said, questioning the idea of cutting off the internet for “50,000 or 100,000 people” because “one person in that region continues to infringe.”
In a series of recent cases, the Supreme Court has declined to hold companies liable for aiding and abetting in other civil damages cases. In June, a unanimous court ruled that American gun manufacturers could not be held responsible for cartel violence on the Southwest border, even though their guns are often involved in those crimes.
Two years ago, the court unanimously ruled that Twitter, now X, could not be held liable for aiding and abetting terror attacks just because it had hosted tweets on its platform that were created by the terror group ISIS.
But in the Cox case, a jury sided against the ISPs and awarded the music companies a $1 billion verdict for the infringement of more than 10,000 copyrighted works.
An appeals court in Richmond, Virginia, tossed out the massive award but found Cox had engaged in “willful contributory infringement.” Cox appealed that decision to the Supreme Court.
The case has drawn attention from some of the nation’s most recognized internet companies, including Google and X, which are siding with the service providers. X argued in a brief that the appeals court ruling against Cox could “wreak havoc” on the tech industry and specifically on artificial intelligence.
X argued that if content creators are permitted to sue AI platforms when people use their technology to violate copyright law, the tech companies would “have no choice but to constrain their actions” to avoid the potential liability.
Several media companies, including Warner Bros. Discovery, have sued AI platforms alleging copyright infringement. (Warner Bros. Discovery is the parent company of CNN.)
In an interesting twist, the Supreme Court rejected a similar copyright appeal from the entertainment industry more than 40 years ago. In that case, Universal Studios challenged the maker of a new-fangled technology it feared would be widely used by Americans to engage in copyright infringement.
The technology at issue then was the Betamax videocassette recorder, or VCR.
A sharply divided Supreme Court ruled the sale of the equipment did not constitute a “contributory infringement” of Universal’s television programs.
The decision was a huge win for the maker of that technology, Sony Corp. of America — the parent company of the lead label now fighting the internet service providers at the Supreme Court.
This story and headline have been updated following oral arguments.
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