This post was co-written by EFF Legal Intern Lara Ellenberg

In going after internet service providers (ISPs) for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the internet based on mere accusations of copyright infringement. When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business’s account after a small number of accusations—perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered. If not overturned, this decision will lead to an untold number of people losing vital internet access as ISPs start to cut off more and more customers to avoid massive damages.

EFF, together with the Center for Democracy & Technology, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and Public Knowledge filed an amicus brief this week urging the U.S. Court of Appeals for the Fourth Circuit to protect internet subscribers’ access to essential internet services by overturning the district court’s decision. Students and faculty from the Samuelson Law, Technology and Public Policy Clinic at Berkeley Law helped write the brief.

The district court agreed with Sony that Cox is responsible when its subscribers—home and business internet users—infringe the copyright in music recordings by sharing them on peer-to-peer networks. It effectively found that Cox didn’t terminate accounts of supposedly infringing subscribers aggressively enough. An earlier lawsuit found that Cox wasn’t protected by the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions that protect certain internet intermediaries, including ISPs, if they comply with the DMCA’s requirements. One of those requirements is implementing a policy of terminating “subscribers and account holders … who are repeat infringers” in “appropriate circumstances.” The court ruled in that earlier case that Cox didn’t terminate enough customers who had been accused of infringement by the music companies.

In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages—by far the largest amount ever awarded in a copyright case.

The District Court Got the Law Wrong

When an ISP isn’t protected by the DMCA’s safe harbor provision, it can sometimes be held responsible for copyright infringement by its users under “secondary liability” doctrines. The district court found Cox liable under both varieties of secondary liability—contributory infringement and vicarious liability—but misapplied both of them, with potentially disastrous consequences.

An ISP can be contributorily liable if it knew that a customer infringed on someone else’s copyright but didn’t take “simple measures” available to it to stop further infringement. Judge O’Grady’s jury instructions wrongly implied that because Cox didn’t terminate infringing users’ accounts, it failed to take “simple measures.” But the law doesn’t require ISPs to terminate accounts to avoid liability. The district court improperly imported a termination requirement from the DMCA’s safe harbor provision (which was already knocked out earlier in the case). In fact, the steps Cox took short of termination actually stopped most copyright infringement—a fact the district court simply ignored.

The district court also got it wrong on vicarious liability. Vicarious liability comes from the common law of agency. It holds that people who are a step removed from copyright infringement (the “principal,” for example, a flea market operator) can be held liable for the copyright infringement of its “agent” (for example, someone who sells bootleg DVDs at that flea market), when the principal had the “right and ability to supervise” the agent. In this case, the court decided that because Cox could terminate accounts accused of copyright infringement, it had the ability to supervise those accounts. But that’s not how other courts have ruled. For example, the Ninth Circuit decided in 2019 that Zillow was not responsible when some of its users uploaded copyrighted photos to real estate listings, even though Zillow could have terminated those users’ accounts. In reality, ISPs don’t supervise the Internet activity of their users. That would require a level of surveillance and control that users won’t tolerate, and that EFF fights against every day.

The consequence of getting the law wrong on secondary liability here, combined with the $1 billion damage award, is that ISPs will terminate accounts more frequently to avoid massive damages, and cut many more people off from the internet than is necessary to actually address copyright infringement.

The District Court’s Decision Violates Due Process and Harms All Internet Users

Not only did the decision get the law on secondary liability wrong, it also offends basic ideas of due process. In a different context, the Supreme Court decided that civil damages can violate the Constitution’s due process requirement when the amount is excessive, especially when it fails to consider the public interests at stake. In the case against Cox, the district court ignored both the fact that a $1 billion damages award is excessive, and that its decision will cause ISPs to terminate accounts more readily and, in the process, cut off many more people from the internet than necessary.

Having robust internet access is an important public interest, but when ISPs start over-enforcing to avoid having to pay billion-dollar damages awards, that access is threatened. Millions of internet users rely on shared accounts, for example at home, in libraries, or at work. If ISPs begin to terminate accounts more aggressively, the impact will be felt disproportionately by the many users who have done nothing wrong but only happen to be using the same internet connection as someone who was flagged for copyright infringement.

More than a year after the start of the COVID-19 pandemic, it's more obvious than ever that internet access is essential for work, education, social activities, healthcare, and much more. If the district court’s decision isn’t overturned, many more people will lose access in a time when no one can afford not to use the internet. That harm will be especially felt by people of color, poorer people, women, and those living in rural areas—all of whom rely disproportionately on shared or public internet accounts. And since millions of Americans have access to just a single broadband provider, losing access to a (shared) internet account essentially means losing internet access altogether. This loss of broadband access because of stepped-up termination will also worsen the racial and economic digital divide. This is not just unfair to internet users who have done nothing wrong, but also overly harsh in the case of most copyright infringers. Being effectively cut off from society when an ISP terminates your account is excessive, given the actual costs of non-commercial copyright infringement to large corporations like Sony Music.

It's clear that Judge O’Grady misunderstood the impact of losing Internet access. In a hearing on Cox’s earlier infringement case in 2015, he called concerns about losing access “completely hysterical,” and compared them to “my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework.” Of course, this wasn’t a valid comparison in 2015 and it rightly sounds absurd today. That’s why, as the case comes before the Fourth Circuit, we’re asking the court to get the law right and center the importance of preserving internet access in its decision.

Updated to reflect the Samuelson Clinic at Berkeley Law's contributions to the brief.