Cox v. Sony Arguments Signal Justices May Fashion Middle-Ground Liability Test for ISPs

""We are being put to two extremes here... How do we announce a rule that deals with those two extremes?" - Justice Sonia Sotomayor"

"The U.S. Supreme Court justices today seemed skeptical of Cox Communications' arguments that it should not be held liable for contributory infringement for failing to terminate internet access to subscribers who were alleged to have committed infringement, but had tough questions for both sides in Cox Communications, Inc. v. Sony Music Entertainment, Inc."

"Cox petitioned the Supreme Court in August 2024 asking whether the U.S. Court of Appeals for the Fourth Circuit erred in finding that Cox materially contributed to the infringement of its users. The petition also questioned whether mere knowledge of infringement suffices to find willfulness under 17 U.S.C. § 504(c)."

"In February 2024, the Fourth Circuit affirmed a jury's willful contributory infringement finding but remanded the case for a new trial on damages after overturning the vicarious liability finding for lack of Cox's profit directly attributable to its subscribers' acts of infringements. The jury verdict had awarded Sony $1 billion in damages."

Supreme Court justices expressed skepticism about Cox Communications' contention that it should not be liable for contributory infringement for failing to terminate internet access for alleged infringers. Cox asked whether the Fourth Circuit erred in finding that Cox materially contributed to users' infringement and whether mere knowledge of infringement suffices to establish willfulness under 17 U.S.C. § 504(c). The Fourth Circuit affirmed a willful contributory infringement finding and remanded for a new damages trial after overturning vicarious liability for lack of profit attributable to subscribers. A jury had awarded Sony $1 billion. The Court heard arguments from Cox, the U.S. government, and Sony, and probed scenarios involving single-family households, universities, and hospitals.

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