Cox Enterprises’ Atlanta headquarters. Photo Credit: Taylor2646
Now only three weeks and change out from an argument before the Supreme Court, Cox Communications is once again firing back against the major labels in their high-stakes copyright infringement showdown.
Cox’s latest retort arrived in a nearly 30-page reply brief today, 24 days before both sides (and the U.S. government) will lay out their positions before the nation’s highest court.
Besides the billion-dollar lower-court decision that’s on the line – not to mention a massive pile of potential damages in similar-but-separate cases – it’s hardly an exaggeration to say that Cox v. Sony Music could fundamentally reshape ISP infringement liability.
As such, despite a curious lack of coverage from other industry outlets, we’ve been following the critical legal battle every step of the way. Enter Cox’s new reply brief, which begins by emphasizing the labels’ allegedly sought “two-notices-and-terminate rule” for internet providers.
In keeping with its name, said rule would purportedly compel Cox and different ISPs, faced with an allegedly sweeping definition of contributory liability and the adjacent threat of being made to cough up astronomical damages, to promptly terminate the accounts of alleged infringers.
And if allowed to stand, the policy would therefore fuel “seismic and dangerous ramifications” in the form of “mass evictions from the internet,” per the ISP.
“Though Plaintiffs now try to distance themselves from this two-notices-and-terminate rule, it is what they must defend,” Cox’s brief states off the bat. “Their defense fails as a matter of law on every level, no matter how much invective Plaintiffs hurl at Cox, how many times they quote internal emails, or how often they invoke the jury.”
Unsurprisingly, the reply also refutes the labels’ cited rulings and related arguments – though it’s best to avoid getting tangled in the case-law weeds here. More interesting is Cox’s continued insistence that its anti-infringement program was (and presumably is) successful.
The label litigants “have never disputed these facts: Cox’s anti-infringement program suspended over 67,000 accounts during the claim period alone…and deterred 98% of infringers,” according to the document.
“Plaintiffs point to no evidence that any aspect of Cox’s anti-infringement system fell short of some rule or norm for an ISP serving 6 million homes and businesses,” the same source elaborates. “They are also conspicuously silent about the point that the anti-infringement program they negotiated with ISPs was less robust, at least on the one dimension most relevant here: It never required termination of any customer.”
Next, the text pushes back against the contention that Cox’s view of ISP liability would leave rightsholders without recourse for alleged infringement. Rather, the plaintiffs would “just need to pick defendants who actually did something wrong” – including by resuming suing direct infringers themselves, the reply brief maintains.
“Or they [labels and others] can collaborate with ISPs to design—and help fund—an anti-infringement program that is more to their liking,” the filing reads. “Cox has no fondness for copyright infringement. Cox just resists a rule that treats ISPs as the world’s internet police and imposes crushing liability whenever strangers lob unverifiable accusations of customer wrongdoing.”
What about possible reasons for allowing continued access to a subscription-based technology despite knowing of “a customer’s misuse”? Well, the way Cox sees things, the involved “provider might deem it unfair to punish innocent people who are also using the technology” or “could conclude that persistent anti-infringement measures short of termination will ultimately prove effective.”
As for liability under the DMCA, Cox is adamant that if Congress wanted to make subscription terminations the norm, it would have done so via the decades-old law or fresh legislation.
“If anything, the DMCA’s light-touch approach reflects Congress’s understanding that widespread public access to the internet is too important to trigger draconian liability frameworks like Plaintiffs,’” the brief states.
Finally, the reply tackles the argument that Cox placed profits before copyright enforcement by booting many subscribers for non-payment but axing far fewer accounts for alleged infringement.
“That Cox treats unverifiable $1 infringement accusations from complete strangers differently from verified failure to pay hundreds hardly proves that Cox culpably participates in its customers’ infringement,” the filing explains towards its conclusion.
