By Blake Brittain
WASHINGTON, Dec 1 (Reuters) – The U.S. Supreme Court is set to hear arguments on Monday in a bid by Cox Communications to avoid financial liability in a major music copyright lawsuit by record labels that accused the internet service provider of enabling its customers to pirate thousands of songs.
Cox has appealed a lower court’s decision to order a new trial to determine how much the Atlanta-based company owes Sony Music, Warner Music Group, Universal Music Group and other labels for contributory copyright infringement. Cox said the retrial could lead to a verdict against it of as much as $1.5 billion.
Cox, the largest unit of privately owned Cox Enterprises, has argued it should not be held responsible for piracy by its users of music owned by the labels in a case being closely watched by internet service providers, or ISPs.
A ruling in favor of the labels, Cox told the justices in a filing, could force it to cut off internet access for “entire households, coffee shops, hospitals, universities” and others “merely because some unidentified person was previously alleged to have used the connection to infringe.”
A jury in Alexandria, Virginia found in 2019 that Cox owed the labels $1 billion for its secondary liability for the copyright infringement by its customers of more than 10,000 copyrights. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out the damages award in 2024 after reversing the jury’s finding on one form of secondary liability.
ISPs are generally not liable for user infringement under U.S. law if they take reasonable measures to prevent it. But the labels accused Cox of failing to address thousands of infringement notices and failing to cut off internet access for repeat infringers or take other measures to deter piracy.
The labels said in a filing that Cox’s lack of action to protect their copyrights was egregious enough to justify the infringement finding.
“While Cox waxes poetic about the centrality of internet access to modern life, 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,” the labels said in the filing. “By its own admission, the subscribers here were ‘habitual offenders’ Cox chose to retain because, unlike the vast multitude cut off for late payment, they contributed to Cox’s bottom line.”
Alphabet’s Google, Amazon, Microsoft and other internet-focused tech companies supported Cox in a joint filing to the Supreme Court and argued that a ruling favoring the labels would “significantly diminish the vitality of the internet economy.”
U.S. Solicitor General John Sauer, representing President Donald Trump’s administration, is due to argue in support of Cox on Monday. Sauer said in a filing that Cox’s mere knowledge of the piracy was not enough to hold it liable for infringement by its users.
Music, film and book industry trade groups filed briefs in support of the labels. The Motion Picture Association, representing the film industry, said that Cox’s argument “threatens profoundly destabilizing consequences for cooperative efforts by copyright owners and service providers to address the scourge of online copyright infringement.”
The jury, in awarding $1 billion to the record labels, found Cox liable both for contributory infringement and vicarious infringement, two forms of secondary copyright infringement liability. The 4th Circuit ordered a retrial on the size of the award after affirming the jury’s finding of contributory infringement but reversing its finding on vicarious liability.
Contributory infringement involves holding parties liable for someone else’s infringement because they knew about it and contributed to it. Vicarious infringement involves holding parties liable for someone else’s infringement because they had the ability to control the infringement and benefited financially from it.
(Reporting by Blake Brittain in Washington; Editing by Will Dunham)
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