> Cox Communications v. Sony Music, 607 U.S.___ (2026), was a United States Supreme Court case regarding the liability of an internet service provider for its subscribers engaging in copyright infringement.
> Cox Communications was sued by multiple music labels for lax enforcement of its users engaged in sharing the labels' copyrighted music, arging Cox finacially benefitted from these users. A jury trial found Cox to be liable. On appeal to the Fourth Circuit, the court dismissed findings that Cox engaged in vicarious infringment, but held that Cox was still liable for contributory infringement, with Cox potentially owing several million dollars to the labels.
> In a 9-0 decision, the Supreme Court found that Cox Communication was not contributorily liable for the actions of its users, reversing the Fourth's decision.
Hilariously (and appropriately), the decision cites Sony Corp. of America v. Universal City Studios, Inc., also known as the "Betamax case."
> (a) “The Copyright Act does not expressly render anyone liable for infringement committed by another.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434.
> In Sony, copyright owners sued the maker and the retailers of the Betamax video tape recorder. Id., at 422. The tape recorder could be used to record copyrighted television programs for later personal viewing, which would not constitute infringement. Id., at 449. On the other hand, it could also be used to reproduce and sell copyrighted television programming, which would constitute infringement. Ibid. The lower court found the Betamax maker liable because the tape recorder was “not suitable for any substantial noninfringing use” and infringement “was either the most conspicuous use or the major use of the Betamax product.” Id., at 428 (internal quotation marks omitted). This Court reversed, concluding that “[t]he Betamax is . . . capable of substantial noninfringing uses”—like personal use—so “sale of such equipment to the general public does not constitute contributory infringement.” Id., at 456.
> The lower court found the Betamax maker liable because the tape recorder was “not suitable for any substantial noninfringing use” and infringement “was either the most conspicuous use or the major use of the Betamax product.”
I don't know anyone who sold television recordings, it was always for personal use. How could the lower court get this so wrong? Was this just one uninformed judge? Or was this actually less certain at the time?
The Ninth Circuit court of appeals understood correctly what the primary use of Betamax would be, but they believed that personal home recording was not fair use, and was thus copyright infringement. They interpreted the law as only allowing libraries to record TV or radio broadcasts.
The Supreme Court ruling for this case found that time-shifting was fair use, but only by a narrow 5-4 margin. Fair use could have gone in a completely different direction over the last 40 years if just one judge had voted differently on Betamax.
Given that that judgement was made in 1981, it's possible that the judges (who were likely a bunch of depression era old dudes) had zero knowledge or exposure, and had never even thought much about, personal video recording before a bunch of lawyers tried to explain it to them during the case.
We have see this happen repeatedly with modern tech cases.
Even complete legal novices like me know about the Sony/Betamax case, FWIW. It would shock me if a judge ruling on copyright implications of a technology didn't know about it.
I had a relative who setup a kinda "blockbuster" type service recording things and offering them out for rental. It really took off for VHS when he got HBO and recorded movies and then rented those. It wasnt a very lucrative hustle but it was an instance of what they didnt want to have happen
Absolutely this happened, but would you say that was the primary use case of the recording capabilities?
I'm trying to understand how a judge would say that the only practical use of backups were copyright infringement, since that is completely contrary to both my experiences and what I believe to be common sense. If the answer to my confusion is that this actually was the major use case and my experiences were rare, then that's fine. Otherwise, I can't help believe this is yet another case in recent history where judges are completely backwards on technological understanding, or maybe even under influence from copyright holders.
This is the case that determined that recording TV broadcasts for your own personal use was not copyright infringement. They understood what the tech was used for, but they didn't know that this use was non-infringing until they made that decision.
I suppose that selling is not necessary, distribution is. Record a movie off cable TV, share with your friends, and lo and behold, they're not going to buy the licensed VHS tape! And maybe even not going to subscribe to cable TV! Losses, losses everywhere.
I remember in 1980, when our school got a VCR and television (on a cart to allow it to be moved from one classroom to another). one of my teachers said that she wasn’t allowed to record something off the air at home and then show it in the classroom.
Time shifting for personal use is expressly legal (making a personal copy). It was also an early form of ad-blocking, because a VHS recorder could stop recording at a set time, thus skip a block of commercials, and then continue. There were suits about that, too.
Yes, but then the question becomes: which tactics does MPAA and the like will now resort to. Because we know they won't exactly say 'I guess that's it then'.
Just to try and understand the decision, an analogy that’s coming to mind would be like saying a van manufacturer wouldn’t have liability if it’s used in a bank robbery. However if the manufacturer sold it with the intent for the buyer to use it for bank robbery (the manufacturer having the intent in this case, as well as the robber themselves), then they could become partially liable.
In this case, there is a safe harbor where ISPs can avoid liability by enforcing a policy against their customers that eventually cuts them off for repeated infringement. Cox stepped outside of this safe harbor by not following their own policy. But the court says that doesn't automatically make them liable.
Does this mean the entire enforcement regime is now more or less a paper tiger? It's sufficient to have a process that satisfies the letter of the law, but you can simply not follow through and enforce it.
> It's sufficient to have a process that satisfies the letter of the law
No.
Let's take an example of 401ks.
Any company that has a 401k has to pass non-discrimination testing to ensure their plan doesn't favor highly compensated employees over non-highly compensated employees. This is done through Actual Deferral Percentage and Actual Contribution Percentage tests. Just doing these tests can be very costly.
If you don't want to do these tests, then you can follow a 'safe harbor' action where the company automatically contributes x% for everyone. If the plan executes the 'safe harbor' action, then they automatically pass the two tests above.
However, if they don't follow through that plan they may still not have violated the nondiscrimination policies if they end up passing those two tests.
So to bring it back to the circumstance here, because Cox was not following their own processes which would have afforded them safe harbor they do not get the benefit of being automatically protected from the action. Then the court goes to see if Cox was sufficiently involved in the violating actions in order to be liable, and the court found that Cox was not.
So going back to the line...:
> It's sufficient to have a process that satisfies the letter of the law, but you can simply not follow through and enforce it.
Not at all. Because it was not enforced, Cox lost the safe harbor protections and had to defend themselves.
Yes, as much as I understand it. You have to either make a van that's specifically tailored to performing bank robberies (a door-smashing attachment at the front, a pulley to quickly get the safe box inside, etc), or at least advertise it as such ("Will get you from the robbery site faster than police can react!"). Otherwise, it's just a van. Owning a van, or selling a van, is not illegal because it could also be used to break law. (One's hands can be used to break law, but this does not lead to a liability for merely possessing hands.)
There already is a specific law shielding gun manufacturers from liability from simple sales, which Democrat heavy states and locales do a lot of work to test the edges of and chip away at: the PLCAA, https://en.wikipedia.org/wiki/Protection_of_Lawful_Commerce_... which was passed in 2005 in light of mendacious lawsuits taking up a notable amount of courts' time.
Yeah. The courts are inconsistent here. If they want to hold service providers responsible, they also must make arms producer responsible, and politicians too.
Courts are not inconsistent, they are following the law. Like most cases decided by SCOTUS, they are deciding on the rules set by Congress and courts have ruled time and time again, that Constitution gives Congress almost sole jurisdiction for determining how Copyright law functions.
For copyright law, Congress does not expressly allow secondary liability for third parties FOR COPYRIGHT unless the party induced the infringement or the provided service is tailored to that infringement. In this case, Cox was not cutting off copyright infringers BUT since their service could be used by same infringers for valid use, they didn't have to.
For arms producer, Congress has exempted them for liability and courts have ruled, yep, Congress gets to make the rules here.
Congress could overturn both rulings by changing the law.
This is what we want. Congress makes the rules, courts interpret but don't make new rules.
So, merely selling 'with intent' for the van to be used in a robbery I don't think meets the bar as the opinion is written. In particular, I read "...which can be shown only if the party induced the infringement or the provided service is tailored to that infringement;"
In that vein, merely selling a tool even if a predominant use or intention of that tool is infringement, the infringement must be actively induced or invited by the seller. This is also affirmed in detail in the USSC opinion: "The Court has repeatedly made clear—see Kalem Co. v. Harper Brothers, 222 U. S. 55, Sony, and Grokster—that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe."
This is the primary part of the opinion, the first 7 of 27 pages. I'm still reading the rest and will update when finished. (Concurring Opinion and Dissents I believe)
===
The meat of the opinion has some interesting elements as well:
* "Internet service providers, such as Cox, have limited knowledge about how their Internet services are used and who uses them. They do know which IP address corresponds to which subscriber’s account, but they cannot distinguish one individual user from another...However, because online infringement is so widespread, pursuing each individual infringer does little to stem the tide.": mere IP logs are not enough to establish liability, perhaps. More importantly, it is opined that individual fishing expeditions dont actually serve the end of eliminating infringement. This does not absolve individual liability, but it becomes important later.
* "Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents ... The Fourth Circuit’s holding thus went beyond the two forms of liability recognized in Grokster and Sony. It also conflicted with this Court’s repeated admonition that contributory liability cannot rest only on a provider’s knowledge of infringement and insufficient action to prevent it.": This points to another case where Circuit and District courts have been ignoring the instruction of higher courts, in this case, inventing new liabilities where none existed. This doesn't go so far as to repudiate entirely the idea of fishing expeditions having teeth, but it places a clear guardrail around expanding liability without laws establishing such.
===
The Sotomayor concurrence on judgment states that the Justice does not believe the methods used by the majority opinion are correct, but still agrees with the judgement because of insufficient information presented by Sony. I think the analysis gone into in this section is flawed, but it is also not precedential since it is not the Order part of the opinion. I am also out of time to poke at that part for the moment. It does relate this case to the closest recent big case on secondary liability though, that of Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, so its worth reading even if the justifying analysis I think does not fit.
The big difference I guess is whether you think negative jurisdiction (limiting what the government can do) vs positive jurisdiction (further enabling the government) is more important, but considering HN and the exhortations against divisive commentary, I'd rather not dive into the weeds arguing that part here.
The problem is these companies are typically natural monopolies. So it's not as if I choose this provider because they were lax in their copyright enforcement. I'd literally have to sell my house and move to accomplish this.
I think a better analogy would be crack pipes sold in minimarts in a box that says "for tobacco use only". Crackheads estate sues the pipe mfr says you knew people were using it for crack and are proximately liable for facilitating the drug use.
Ok while superficially great news but the supreme cynic in me is starting to think: what if the RIAA et al go to ISPs and saying they will pay them to continue monitoring this stuff and if they bring them to court, sue them and win they will give them a cut of the winnings? Would something like this even be financially feasible i.e. a profit motive inserted somewhere into the equation that ISPs would continue monitoring torrent activity?
> Would something like this even be financially feasible
No.
The entire reason they went after Cox is because cox has deep pockets and there was a possibility that Cox would just settle and work with them rather than fighting this all the way to the supreme court.
The problem sony has is the maximum money they can claim from an individual is just way less than what they can get from a business. Almost certainly enough to justify the legal fees.
> The provider of a service is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement
So they try to hold the provider responsible. While I disagree with this, I can at the least understand some rationale behind it, even though this is inconsistent. For instance, if someone uses a gun to shoot down someone, why is the company providing the gun not held accountable here? They should also be forced to pay compensation damage to people being harmed here. But this is besides the point I am trying to make.
The thing is that I do not want to be held accountable under such a law. I believe when it comes to information, courts should not be allowed to restrict me or anyone else in any way, shape or form. I want a free society. That means flow of information can never be restricted by any such actors. Granted, this is not possible right now anywhere on Planet Earth as far as I am aware, and I understand the implication of this too (no more secrets possible), but I want this 100%. Yet I can't have that because courts restrict me, and all those who want the same, arbitrarily so. IMO this also means that such courts must be changed. Right now we have corporate courts where the money addiction flows in. I understand this system and the problems of this system. This is why there must be a transition starting from the society, to no longer make it possible to restrict service providers here in any way, shape or form. The same would apply to democracy - I don't want to accept indirect democracy run by lobbyists. I want to be in charge, in proportion to my vote, at all times, of every decision (I am ok delegating this to representatives, mind you, but not automatically and not always; in indirect democracy you vote for some representative who can then do whatever he wants to. I am not ok with this. How many former Trump voters would, right now, want Trump to be gone from power, or in prison? I think many would, considering the damage he caused and is still causing).
> if someone uses a gun to shoot down someone, why is the company providing the gun not held accountable here?
The gun company will claim they sold for self defense or just for a hobbyist's collection - They'll claim that the gun owner used it for something else is not their responsibility. Same for any or product that can be used to kill someone with.
> if someone uses a gun..why is the company providing the gun not held accountable here?
They absolutely can be held accountable. The Protection of Lawful Commerce in Arms Act (PLCAA) has carve-outs for: negligent entrustment - when a dealer or manufacturer provides a firearm knowing it will be used for a crime; negligence per se - when a seller knowingly violated state or federal laws in the sale or marketing of the product (and that sale was a proximate cause of the harm); defects in design; breach of contract/warranty.
However, selling a product for lawful use, whether a gun, truck, or Internet connectivity, does not make the seller liable if the consumer decides to use that otherwise lawful product for crimes. There has to be some assumption of agency (and liability) on the part of the individual who is clearing ethical/moral hurdles to do wrong.
I don't see how this unanimous court decision conflicts with that theory in the context of the ISP - in fact, I think it's a reinforcement of some common sense.
This isn't good. They can still sue you, but now they need proof that you as an individual behind that public IP did it. This will only incentivize them to join the push for ID requirements.
There is a very important consideration here that this opinion doesn't really touch on, but I think is invited down the road for future cases and legislation: Can you compel the speech of a third party to aid in exploratory evidence gathering (aka fishing expeditions) without a clear, well defined, and particular, cause of action at court to issue a subpoena?
In most classic U.S. jurisdiction, no, you cannot. Compelled activity or speech is generally frowned upon. The most important part of this case, IMO, was the Supreme Court constraining the Fourth Circuit's interpretation of contributory liability and attempting to turn the DMCA system into one for enabling those fishing expeditions.
I think they still sometimes go for it even when they know they aren't recouping their losses, to deter/scare potential users. Obviously that doesn't scale and it's mostly for publicity stunts but it did happen here in Canada. They more or less just scanned a few trackers and went after every Canadian IP address they found for the given torrents.
For those like myself who wanted context:
> Cox Communications v. Sony Music, 607 U.S.___ (2026), was a United States Supreme Court case regarding the liability of an internet service provider for its subscribers engaging in copyright infringement.
> Cox Communications was sued by multiple music labels for lax enforcement of its users engaged in sharing the labels' copyrighted music, arging Cox finacially benefitted from these users. A jury trial found Cox to be liable. On appeal to the Fourth Circuit, the court dismissed findings that Cox engaged in vicarious infringment, but held that Cox was still liable for contributory infringement, with Cox potentially owing several million dollars to the labels.
> In a 9-0 decision, the Supreme Court found that Cox Communication was not contributorily liable for the actions of its users, reversing the Fourth's decision.
https://en.wikipedia.org/wiki/Cox_Communications,_Inc._v._So...
Hilariously (and appropriately), the decision cites Sony Corp. of America v. Universal City Studios, Inc., also known as the "Betamax case."
> (a) “The Copyright Act does not expressly render anyone liable for infringement committed by another.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434.
> In Sony, copyright owners sued the maker and the retailers of the Betamax video tape recorder. Id., at 422. The tape recorder could be used to record copyrighted television programs for later personal viewing, which would not constitute infringement. Id., at 449. On the other hand, it could also be used to reproduce and sell copyrighted television programming, which would constitute infringement. Ibid. The lower court found the Betamax maker liable because the tape recorder was “not suitable for any substantial noninfringing use” and infringement “was either the most conspicuous use or the major use of the Betamax product.” Id., at 428 (internal quotation marks omitted). This Court reversed, concluding that “[t]he Betamax is . . . capable of substantial noninfringing uses”—like personal use—so “sale of such equipment to the general public does not constitute contributory infringement.” Id., at 456.
> The lower court found the Betamax maker liable because the tape recorder was “not suitable for any substantial noninfringing use” and infringement “was either the most conspicuous use or the major use of the Betamax product.”
I don't know anyone who sold television recordings, it was always for personal use. How could the lower court get this so wrong? Was this just one uninformed judge? Or was this actually less certain at the time?
The Ninth Circuit court of appeals understood correctly what the primary use of Betamax would be, but they believed that personal home recording was not fair use, and was thus copyright infringement. They interpreted the law as only allowing libraries to record TV or radio broadcasts.
The Supreme Court ruling for this case found that time-shifting was fair use, but only by a narrow 5-4 margin. Fair use could have gone in a completely different direction over the last 40 years if just one judge had voted differently on Betamax.
Given that that judgement was made in 1981, it's possible that the judges (who were likely a bunch of depression era old dudes) had zero knowledge or exposure, and had never even thought much about, personal video recording before a bunch of lawyers tried to explain it to them during the case.
We have see this happen repeatedly with modern tech cases.
Even complete legal novices like me know about the Sony/Betamax case, FWIW. It would shock me if a judge ruling on copyright implications of a technology didn't know about it.
I had a relative who setup a kinda "blockbuster" type service recording things and offering them out for rental. It really took off for VHS when he got HBO and recorded movies and then rented those. It wasnt a very lucrative hustle but it was an instance of what they didnt want to have happen
Absolutely this happened, but would you say that was the primary use case of the recording capabilities?
I'm trying to understand how a judge would say that the only practical use of backups were copyright infringement, since that is completely contrary to both my experiences and what I believe to be common sense. If the answer to my confusion is that this actually was the major use case and my experiences were rare, then that's fine. Otherwise, I can't help believe this is yet another case in recent history where judges are completely backwards on technological understanding, or maybe even under influence from copyright holders.
This is the case that determined that recording TV broadcasts for your own personal use was not copyright infringement. They understood what the tech was used for, but they didn't know that this use was non-infringing until they made that decision.
I suppose that selling is not necessary, distribution is. Record a movie off cable TV, share with your friends, and lo and behold, they're not going to buy the licensed VHS tape! And maybe even not going to subscribe to cable TV! Losses, losses everywhere.
I remember in 1980, when our school got a VCR and television (on a cart to allow it to be moved from one classroom to another). one of my teachers said that she wasn’t allowed to record something off the air at home and then show it in the classroom.
> How could the lower court get this so wrong?
There are no standards for lower court judges. They frequently do things that are grossly illegal.
Here's a US lower court judge who spontaneously ordered that a child's name be changed because of the judge's religious beliefs: https://volokh.com/2013/08/12/judge-orders-that-childs-name-...
They were right. I never sold a taped VCR, but my parents used it to time shift Saturday morning cartoons every week.
Time shifting for personal use is expressly legal (making a personal copy). It was also an early form of ad-blocking, because a VHS recorder could stop recording at a set time, thus skip a block of commercials, and then continue. There were suits about that, too.
Glad to have one less reason to incentivize ISPs to monitor every single thing we do on the internet.
They are already incentivized enough by selling the data, more incentives won't change anything.
The ruling said that they don’t have to.
Going with your point, it does not say they can’t monitor and then sell the list of pirates to Sony/etc. for some extra income.
They just didn’t like doing it for free.
Yes, but then the question becomes: which tactics does MPAA and the like will now resort to. Because we know they won't exactly say 'I guess that's it then'.
Just to try and understand the decision, an analogy that’s coming to mind would be like saying a van manufacturer wouldn’t have liability if it’s used in a bank robbery. However if the manufacturer sold it with the intent for the buyer to use it for bank robbery (the manufacturer having the intent in this case, as well as the robber themselves), then they could become partially liable.
Have I got that right?
In this case, there is a safe harbor where ISPs can avoid liability by enforcing a policy against their customers that eventually cuts them off for repeated infringement. Cox stepped outside of this safe harbor by not following their own policy. But the court says that doesn't automatically make them liable.
Does this mean the entire enforcement regime is now more or less a paper tiger? It's sufficient to have a process that satisfies the letter of the law, but you can simply not follow through and enforce it.
> It's sufficient to have a process that satisfies the letter of the law
No.
Let's take an example of 401ks.
Any company that has a 401k has to pass non-discrimination testing to ensure their plan doesn't favor highly compensated employees over non-highly compensated employees. This is done through Actual Deferral Percentage and Actual Contribution Percentage tests. Just doing these tests can be very costly.
If you don't want to do these tests, then you can follow a 'safe harbor' action where the company automatically contributes x% for everyone. If the plan executes the 'safe harbor' action, then they automatically pass the two tests above.
However, if they don't follow through that plan they may still not have violated the nondiscrimination policies if they end up passing those two tests.
So to bring it back to the circumstance here, because Cox was not following their own processes which would have afforded them safe harbor they do not get the benefit of being automatically protected from the action. Then the court goes to see if Cox was sufficiently involved in the violating actions in order to be liable, and the court found that Cox was not.
So going back to the line...: > It's sufficient to have a process that satisfies the letter of the law, but you can simply not follow through and enforce it.
Not at all. Because it was not enforced, Cox lost the safe harbor protections and had to defend themselves.
MGM vs Grokster is a good decision to read to understand the boundaries of contributory infringement.
https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,....
https://supreme.justia.com/cases/federal/us/545/913/
Yes, as much as I understand it. You have to either make a van that's specifically tailored to performing bank robberies (a door-smashing attachment at the front, a pulley to quickly get the safe box inside, etc), or at least advertise it as such ("Will get you from the robbery site faster than police can react!"). Otherwise, it's just a van. Owning a van, or selling a van, is not illegal because it could also be used to break law. (One's hands can be used to break law, but this does not lead to a liability for merely possessing hands.)
That's my understanding. Basic carrier vs service stuff. What I wonder is how this might impact gun manufacturers.
There already is a specific law shielding gun manufacturers from liability from simple sales, which Democrat heavy states and locales do a lot of work to test the edges of and chip away at: the PLCAA, https://en.wikipedia.org/wiki/Protection_of_Lawful_Commerce_... which was passed in 2005 in light of mendacious lawsuits taking up a notable amount of courts' time.
Yeah. The courts are inconsistent here. If they want to hold service providers responsible, they also must make arms producer responsible, and politicians too.
Courts are not inconsistent, they are following the law. Like most cases decided by SCOTUS, they are deciding on the rules set by Congress and courts have ruled time and time again, that Constitution gives Congress almost sole jurisdiction for determining how Copyright law functions.
For copyright law, Congress does not expressly allow secondary liability for third parties FOR COPYRIGHT unless the party induced the infringement or the provided service is tailored to that infringement. In this case, Cox was not cutting off copyright infringers BUT since their service could be used by same infringers for valid use, they didn't have to.
For arms producer, Congress has exempted them for liability and courts have ruled, yep, Congress gets to make the rules here.
Congress could overturn both rulings by changing the law.
This is what we want. Congress makes the rules, courts interpret but don't make new rules.
Well this is a copyright case and guns aren’t. Couldn’t that be a big reason for the difference?
So, merely selling 'with intent' for the van to be used in a robbery I don't think meets the bar as the opinion is written. In particular, I read "...which can be shown only if the party induced the infringement or the provided service is tailored to that infringement;"
In that vein, merely selling a tool even if a predominant use or intention of that tool is infringement, the infringement must be actively induced or invited by the seller. This is also affirmed in detail in the USSC opinion: "The Court has repeatedly made clear—see Kalem Co. v. Harper Brothers, 222 U. S. 55, Sony, and Grokster—that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe."
This is the primary part of the opinion, the first 7 of 27 pages. I'm still reading the rest and will update when finished. (Concurring Opinion and Dissents I believe)
===
The meat of the opinion has some interesting elements as well:
* "Internet service providers, such as Cox, have limited knowledge about how their Internet services are used and who uses them. They do know which IP address corresponds to which subscriber’s account, but they cannot distinguish one individual user from another...However, because online infringement is so widespread, pursuing each individual infringer does little to stem the tide.": mere IP logs are not enough to establish liability, perhaps. More importantly, it is opined that individual fishing expeditions dont actually serve the end of eliminating infringement. This does not absolve individual liability, but it becomes important later.
* "Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents ... The Fourth Circuit’s holding thus went beyond the two forms of liability recognized in Grokster and Sony. It also conflicted with this Court’s repeated admonition that contributory liability cannot rest only on a provider’s knowledge of infringement and insufficient action to prevent it.": This points to another case where Circuit and District courts have been ignoring the instruction of higher courts, in this case, inventing new liabilities where none existed. This doesn't go so far as to repudiate entirely the idea of fishing expeditions having teeth, but it places a clear guardrail around expanding liability without laws establishing such.
===
The Sotomayor concurrence on judgment states that the Justice does not believe the methods used by the majority opinion are correct, but still agrees with the judgement because of insufficient information presented by Sony. I think the analysis gone into in this section is flawed, but it is also not precedential since it is not the Order part of the opinion. I am also out of time to poke at that part for the moment. It does relate this case to the closest recent big case on secondary liability though, that of Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, so its worth reading even if the justifying analysis I think does not fit.
The big difference I guess is whether you think negative jurisdiction (limiting what the government can do) vs positive jurisdiction (further enabling the government) is more important, but considering HN and the exhortations against divisive commentary, I'd rather not dive into the weeds arguing that part here.
The problem is these companies are typically natural monopolies. So it's not as if I choose this provider because they were lax in their copyright enforcement. I'd literally have to sell my house and move to accomplish this.
I think a better analogy would be crack pipes sold in minimarts in a box that says "for tobacco use only". Crackheads estate sues the pipe mfr says you knew people were using it for crack and are proximately liable for facilitating the drug use.
I watched a drug addict lovingly turn a plain lightbulb into a meth pipe.
..and any delivery, distributors, importers, and shippers should be held liable, also.
Ok while superficially great news but the supreme cynic in me is starting to think: what if the RIAA et al go to ISPs and saying they will pay them to continue monitoring this stuff and if they bring them to court, sue them and win they will give them a cut of the winnings? Would something like this even be financially feasible i.e. a profit motive inserted somewhere into the equation that ISPs would continue monitoring torrent activity?
> Would something like this even be financially feasible
No.
The entire reason they went after Cox is because cox has deep pockets and there was a possibility that Cox would just settle and work with them rather than fighting this all the way to the supreme court.
The problem sony has is the maximum money they can claim from an individual is just way less than what they can get from a business. Almost certainly enough to justify the legal fees.
I wonder if OpenAI, et.al were eagerly awaiting this verdict because once an ISP is liable...well I'm sure you can extrapolate from there.
If anyone wonders, that's a good result. Sony was in the wrong here.
This is huge. Sony is trying to make Cox into law enforcement to do their biddings. The Supreme Court struck that down.
If sony equipment was used in facilitating the copyright violation, would that make Sony liable?
That was already decided in an old case about Betamax recorders, quoted on the front page of the linked article.
so just ask again tomorrow?
> The provider of a service is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement
So they try to hold the provider responsible. While I disagree with this, I can at the least understand some rationale behind it, even though this is inconsistent. For instance, if someone uses a gun to shoot down someone, why is the company providing the gun not held accountable here? They should also be forced to pay compensation damage to people being harmed here. But this is besides the point I am trying to make.
The thing is that I do not want to be held accountable under such a law. I believe when it comes to information, courts should not be allowed to restrict me or anyone else in any way, shape or form. I want a free society. That means flow of information can never be restricted by any such actors. Granted, this is not possible right now anywhere on Planet Earth as far as I am aware, and I understand the implication of this too (no more secrets possible), but I want this 100%. Yet I can't have that because courts restrict me, and all those who want the same, arbitrarily so. IMO this also means that such courts must be changed. Right now we have corporate courts where the money addiction flows in. I understand this system and the problems of this system. This is why there must be a transition starting from the society, to no longer make it possible to restrict service providers here in any way, shape or form. The same would apply to democracy - I don't want to accept indirect democracy run by lobbyists. I want to be in charge, in proportion to my vote, at all times, of every decision (I am ok delegating this to representatives, mind you, but not automatically and not always; in indirect democracy you vote for some representative who can then do whatever he wants to. I am not ok with this. How many former Trump voters would, right now, want Trump to be gone from power, or in prison? I think many would, considering the damage he caused and is still causing).
> if someone uses a gun to shoot down someone, why is the company providing the gun not held accountable here?
The gun company will claim they sold for self defense or just for a hobbyist's collection - They'll claim that the gun owner used it for something else is not their responsibility. Same for any or product that can be used to kill someone with.
Let's not forget sports, which is a huge segment of the gun-owning public - trap, skeet, biathlon, PRS, USPSA/IPSC, High Power/CMP, etc.
> if someone uses a gun..why is the company providing the gun not held accountable here?
They absolutely can be held accountable. The Protection of Lawful Commerce in Arms Act (PLCAA) has carve-outs for: negligent entrustment - when a dealer or manufacturer provides a firearm knowing it will be used for a crime; negligence per se - when a seller knowingly violated state or federal laws in the sale or marketing of the product (and that sale was a proximate cause of the harm); defects in design; breach of contract/warranty.
However, selling a product for lawful use, whether a gun, truck, or Internet connectivity, does not make the seller liable if the consumer decides to use that otherwise lawful product for crimes. There has to be some assumption of agency (and liability) on the part of the individual who is clearing ethical/moral hurdles to do wrong.
I don't see how this unanimous court decision conflicts with that theory in the context of the ISP - in fact, I think it's a reinforcement of some common sense.
This isn't good. They can still sue you, but now they need proof that you as an individual behind that public IP did it. This will only incentivize them to join the push for ID requirements.
They aren't suing some broke 23 year old. What they can collect is less than their lawyer fees.
At worst, universities crack down harder on torrents, but that was always an option for labels.
There is a very important consideration here that this opinion doesn't really touch on, but I think is invited down the road for future cases and legislation: Can you compel the speech of a third party to aid in exploratory evidence gathering (aka fishing expeditions) without a clear, well defined, and particular, cause of action at court to issue a subpoena?
In most classic U.S. jurisdiction, no, you cannot. Compelled activity or speech is generally frowned upon. The most important part of this case, IMO, was the Supreme Court constraining the Fourth Circuit's interpretation of contributory liability and attempting to turn the DMCA system into one for enabling those fishing expeditions.
> They aren't suing some broke 23 year old. What they can collect is less than their lawyer fees.
You may not be old enough to remember this, but that's exactly what they did in the 2000's
There's a lot more 23 year olds to this time around. I don't think you can intimidate them down this time.
They didn't exactly intimidate them down last time either. Piracy decisively won the war on piracy.
I think they still sometimes go for it even when they know they aren't recouping their losses, to deter/scare potential users. Obviously that doesn't scale and it's mostly for publicity stunts but it did happen here in Canada. They more or less just scanned a few trackers and went after every Canadian IP address they found for the given torrents.
https://www.cbc.ca/news/canada/nova-scotia/movie-studios-bit...