By Jeffrey Antonelli, Experienced BitTorrent Defense Attorney
Who’s Responsible When a Tool is Allegedly Misused?
There is a major copyright case developing right now with the United States Supreme Court. It has the potential to create a material change in the landscape of copyright infringement lawsuits around the country.
At issue on appeal is a billion dollar judgment against ISP COX Communications resulting from a trial and lawsuit filed by Sony. The lawsuit alleged that COX knew many of its Internet subscribers were using it services to copyright infringement, but like the honey badger, COX Communications just didn’t care. Or, to put it in legal copyright terms, what Cox did in not terminating most Subscribers’ accounts even when they saw the online piracy, Cox’s conduct was “willful” under 17 USC Section 504 (c).
My law firm Antonelli Law has helped thousands of clients across the country who were accused of using BitTorrent software to commit copyright infringement since 2010. These cases involved over 50 different movie companies, record companies, and software companies. Movie studios, including Dallas Buyers Club LLC and Strike 3 Holdings LLC, and software companies, including Siemens and Ansys. Many of our clients were Subscribers of the ISPs, meaning their names were on the Internet Services bill – and they were the ones who received a notice that a Copyright holder had filed a federal copyright lawsuit, and issued a subpoena to the ISP to reveal the Subscriber’s name and address.
Often, the Subscriber had nothing to do with the BitTorrent activity alleged, but rather they became the lawsuit target due to a guest, family member, or unknown other.
I often told those Subscribers they did not have any liability for something they did not do. Moreover, it was unfair burden to them being the initial Target of the lawsuit since many people freely give their Wi-Fi access password to your family members and another guest when they visit their home. I thought providing Internet access today is much like any other utility like offering a glass of water, allowing someone to recharge their iPhone.
And in this Supreme Court case it’s now COX Communications itself that wants to be treated like a neutral utility.
And Sony wants Cox to be treated instead as the knowing accomplice – and be held contributorily liable when COX continued to sell its services to customers that it knew were using it for online piracy on a repeated basis. As Sony described in its Reply Brief to the Court, “Cox made a deliberate and egregious decision to elevate its own profits over compliance with the law, supplying the means for massive copyright infringement to specific users that it knew were “habitual offenders“ because “we want to hold on to every subscriber we can.”
Indeed, Sony mentions from facts established in the underlying trial that the Cox manager responsible for compliance with the DMCA (Digital Millenium Copyright Act) was “openly contemptuous of the statute, telling his team: “F the dmca!!!!”
Depending on the outcome of this case, it is possible that ISPs will immediately shut down services to just about anyone it sees committing online privacy, even just once or perhaps a few times.
As explained by Amici EFF (Electronic Frontier Foundation) in its Brief to the Court, “In the ISP context, the threat of massive exposure would predictably induce providers to terminate users’ Internet access on thin accusations to avoid unpredictable liability.
In other words, even the largest ISPs probably prefer not to risk losing $1 billion because of the potential to be held liable for statutory damages due to many infringing users.
- The Basics: What is Copyright Infringement?
1.1. Direct Infringement: The Starting Point
Before we can understand who else might be responsible, we need to identify the initial wrongdoing. Direct copyright infringement is the unauthorized reproduction or distribution of a copyrighted work. In the context of the Cox v. Sony case, this occurred when internet users utilized peer-to-peer networks, such as BitTorrent, to upload and download copyrighted songs without permission from the music labels. In this legal battle, it is the internet users—the individuals actually copying the music—who are the direct infringers.
2. Broadening the Blame: An Introduction to Secondary Liability
2.1. The Core Idea
Secondary liability is the legal principle of holding a third party responsible for infringement they did not commit themselves, but which they helped bring about. It extends blame beyond the direct actor to those who assisted or profited from the illegal activity.
2.2. The Two Flavors of Secondary Liability
There are two main types of secondary liability that courts recognize in copyright law:
- Vicarious Liability: This applies when a party has the right and ability to stop or limit the direct infringement and receives a direct financial benefit from it. In the Cox case, the appeals court found that the company was not vicariously liable. This is because Cox’s monthly fees did not increase when users pirated music; it would “receive the same monthly fees even if all of its subscribers stopped infringing.” This fact is legally dispositive because it breaks the required causal link between the infringing activity and the defendant’s financial gain.
- Contributory Liability: This applies when a party knowingly encourages or assists in the infringement. This is the central issue in the Cox v. Sony case. The music labels argue that by continuing to provide internet service to known pirates, Cox was knowingly assisting in their illegal activity.
3. The Main Event: Contributory Infringement in Cox v. Sony
3.1. The Music Labels’ Accusation: “You Knowingly Helped Pirates for Profit”
The core claim from Sony Music and the other labels is that Cox made a deliberate business decision to ignore massive piracy on its network because it was profitable to do so. Their legal strategy sought to establish Cox’s culpability through evidence drawn from the company’s own internal records:
- Knowing Contribution: The labels argued Cox met the “knowledge” and “material contribution” prongs of the contributory infringement test. They contended that Cox knew specific subscribers were “habitual offenders” and “materially contributed” to their illegal acts by continuing to provide the essential internet service they needed to pirate music.
- Profit Over Compliance: The music companies claim Cox made a “deliberate” choice to keep profiting from these subscribers rather than cutting them off. They highlight a stunning internal email from a Cox employee regarding a high-paying customer: “This customer will likely fail again, but let’s give him one more chan[c]e. he pays 317.63 a month.“
- A Culture of Contempt: Internal emails revealed a disdain for copyright law within the company. The manager responsible for Cox’s compliance with the Digital Millennium Copyright Act (DMCA) bluntly told his team, “F the dmca!!!“.
- Termination “Hypocrisy”: The labels use Cox’s own data to argue its professed concern for internet access is a pretext, and its actual policy is driven purely by revenue protection. They point to the stark contrast in termination policies: during the same period Cox terminated just 32 customers for repeat copyright abuse, it terminated 619,711 customers for failing to pay their bills.
3.2. Cox’s Defense: “We’re Just the Pipes, Not the Police”
Cox’s defense, supported by groups like the Electronic Frontier Foundation (EFF), hinges on the principle that holding a neutral utility provider liable for its users’ actions is a dangerous legal overreach. Its counterarguments are built on foundational legal precedents and public policy concerns:
- Neutral Technology Provider: Cox positions itself under the protection of the landmark Sony v. Universal (1984) ruling, arguing that providing a “general-purpose tool” with “substantial noninfringing uses”—like the VCR in that case—cannot be the basis for liability. They maintain they are a neutral utility, not an active participant in misuse.
- Lack of Culpable Intent: Cox argues that contributory infringement requires “affirmative steps to foster infringement,” which it claims it never took. Since its business model does not generate more revenue from piracy, it had no culpable intent to encourage illegal activity.
- The “Duty to Terminate” Danger: Forcing ISPs to terminate users based on mere accusations, they argue, would be a disaster for public internet access. This could cut off service to entire families, libraries, hospitals, and even military barracks, where a single person’s alleged actions would punish countless innocent users.
4. The Central Conflict: A Legal Balancing Act
The case boils down to two fundamentally different views of responsibility in the digital world. This table summarizes the core legal tension between protecting creative work and promoting technological innovation:
| Sony’s position (Protecting Creators) | The ISP’s Position (Enabling Technology & Access) |
| Accountability for Knowing Assistance: A company that knowingly provides an essential tool to repeat infringers for profit shares in the blame. | Liability Requires Culpable Action: A company should not be liable for its users’ actions unless it actively encourages or intends to facilitate the wrongdoing. |
| The DMCA Implies Liability: The “safe harbor” law, which protects ISPs that terminate repeat infringers, would be a “nullity” or “nonsensical” if ISPs couldn’t be held liable in the first place. | Neutral Tools Aren’t Culpable: Providing a multi-use technology (like the internet) to the public is not the same as participating in its misuse. |
| Economic Incentives Matter: Without liability, ISPs have a powerful financial incentive to ignore piracy as long as the bills get paid. | Public Harm of Termination: Forcing ISPs to become “internet police” would lead to mass terminations, cutting off an essential service for entire households and institutions. |
5. Raising the Stakes: What Does “Willful” Infringement Mean?
5.1. Why It Matters
If an infringer’s actions are found to be “willful,” the potential damages increase dramatically, from a maximum of 30,000 to **150,000 per copyrighted work**.
5.2. Two Competing Definitions
The heart of the dispute over willfulness is whose knowledge matters. The two sides offer starkly different definitions:
- Sony’s View: A secondary infringer (like Cox) is willful if it simply knew its customers’ actions were illegal.
- Cox’s View: A secondary infringer is only willful if it knew its own conduct (in this case, failing to terminate the customers) was illegal.
6. The Real-World Impact: Why This Case Affects Everyone
According to civil liberties groups like the EFF, the stakes of this case extend far beyond the courtroom and could reshape the digital landscape for everyone.
- Risk to Innocent Users: Terminating an internet account is a blunt instrument. It doesn’t just affect the one person accused of piracy; it cuts off entire families, roommates, and small business employees. A single termination could disconnect an entire military barracks, university dormitory, hospital, or regional ISP that serves thousands of its own customers, punishing countless individuals who did nothing wrong.
- The “Digital Divide”: In many parts of the country, especially rural and low-income areas, there is little or no competition among broadband providers. For many, losing service from their one local ISP could mean being cut off entirely from essential services for work, education, and healthcare.
- Internet as an Essential Service: Internet access is no longer a luxury but a “need-to-have” utility for full participation in modern society. Forcing ISPs to police their networks based on third-party accusations could have a chilling effect on this essential access, making providers more likely to terminate service to avoid the risk of billion-dollar lawsuits.
7. Conclusion: Defining Responsibility in the Digital Age
The Supreme Court’s decision in Cox v. Sony is about much more than a billion-dollar fine. It may draw a critical line in the sand, defining the responsibilities of the companies that provide our gateway to the digital world – ISPs (Internet Service Providers).
The outcome will set a major precedent for how we balance the rights of creators with the public’s need for access to technology, shaping the future of the internet for everyone. The Court’s decision could ultimately determine whether, in the digital age, an internet provider is merely the landlord renting out the apartment, or a co-conspirator in the counterfeiting operation happening inside.
As Sony paints it, “At one point, peer-to-peer file sharing ballooned to a whopping 21% of all traffic on Cox‘s network”, and 99.97% of peer-to-peer content [like BitTorrent] is infringing on Copyrights.