EFF to Court: The Supreme Court Must Rein in Expansive Secondary Copyright Liability

"If the Supreme Court doesn't reverse a lower court's ruling, internet service providers (ISPs) could be forced to terminate people's internet access based on nothing more than mere accusations of copyright infringement. This would threaten innocent users who rely on broadband for essential aspects of daily life. EFF-along with the American Library Association, the Association of Research Libraries, and Re:Create-filed an amicus brief urging the Court to reverse the decision."

"the Supreme Court approving the appeals court's findings will radically change the amount of risk your ISP takes on if a customer infringes on copyright, forcing the ISP to terminate access to the internet for those users accused of copyright infringement-and everyone else who uses that internet connection. This issue turns on what courts call "secondary liability," which is the legal idea that someone can be held responsible not for what they did directly, but for what someone else did using their product or service."

"The case began when music companies sued Cox Communications, arguing that the ISP should be held liable for copyright infringement committed by some of its subscribers. The Court of Appeals for the Fourth Circuit agreed, adopting a "material contribution" standard for contributory copyright liability (a rule for when service providers can be held liable for the actions of users). The lower court said that providing a service that could be used for infringement is enough to create liability when a customer infringes."

If the Supreme Court upholds the Fourth Circuit's ruling, ISPs could face contributory liability when subscribers commit copyright infringement even if the ISP merely provides internet access. The Fourth Circuit adopted a 'material contribution' standard, finding that offering a service capable of infringement can create liability when a customer infringes. Music companies sued Cox Communications seeking liability for subscriber infringement. The Patent Act uses a different secondary-liability test, requiring a product to be incapable of substantial non-infringing use to be contributory. Internet access is overwhelmingly lawful and functions as a staple article of commerce, making such liability inappropriate. EFF and library and research organizations filed an amicus brief urging reversal.

Read at Electronic Frontier Foundation