from the strange-bedfellows dept
One can never predict how a court will rule after oral argument. But I do fear that in Cox Communications v. Sony Music Entertainment we are on the precipice of getting yet another major copyright decision from the Supreme Court where the words “First Amendment” are not uttered even once—unless, of course, someone like Justice Alito has something to say about it, because he was basically the only justice whose questions addressed the practical effect on people’s ability to speak online should Sony’s arguments prevail. (“That doesn’t sound workable to me,” he said at one point, recognizing how many people would effectively end up losing their Internet access if Sony were right and providers were required to terminate accounts upon receiving an infringement notice.)
This case is one where Cox—and, by extension, EVERY Internet platform and provider—faces showstopping liability for how its users are alleged to use their Internet service. As we pointed out in the Copia Institute’s amicus brief, the rule that comes out of this case, governing whether Cox can be secondarily liable for its users’ alleged wrongdoings, is by no means limited to just copyright liability. But that was the form of liability at issue here, because Cox’s users were alleged to have fileshared works infringing copyrights Sony claimed the right to enforce. Sony has argued that Cox should share in that liability because it did not do anything to stop those users from filesharing, and, indeed, let these users keep using their service even after allegedly being told they were infringing—although, as Cox argued, it’s not clear that Cox actually had enough knowledge of actual infringement to act on, because there were never any notices alleging that any specific person had committed any specific wrongful act (and, as we also noted in our brief, there was never any judicial finding that such wrongfulness had indeed been committed; at most there were accusations, which, as this overall litigation revealed, were often unfounded).
Cox, for its part, opted to litigate this case essentially as a pure tort case: what are the rules for when a third party can be liable for the actions of another? And it’s possible that this strategy might pay off because the justices did not seem comfortable with the idea that secondary liability could be picked up too casually, in any context. What they will wrangle with is whether knowing that someone they are providing a tool to is using it for bad purpose is enough to share in liability, or whether there needs to be something more, like an intent that the tool be used for that bad purpose. (“Intent” and “purpose” were terms that came up a lot; expect the decision to invoke them, even if the result is a remand back to the Fourth Circuit to reconsider Cox’s liability under a standard referencing them.) Justices Gorsuch and Kavanaugh also expressed concern that because the copyright statute itself did not create a cause of action for secondary liability the Court should be wary about creating such liability itself when the decision whether or not to do so, or how, should be in Congress’s purview.
But it also was a big risk to be so singularly focused on this argument, because it obfuscated what’s really at stake.
Part of the problem with Cox’s strategy is that this was a copyright case, and copyright tends to make otherwise reasonable people lose their minds. Which is how the Supreme Court managed to produce a decision in the Warhol case where even though it was a fair use case, and fair use is all about protecting expression from copyright’s power, the decision never even mentioned, let alone grappled with, how the First Amendment and copyright law need to play together. That decision was written by Justice Sotomayor, who seemed to have the coldest reception to Cox’s arguments here. After all, she seemed to think, Cox had reason to know their users were filesharing! How can it be fair they escape trouble for that???
The answer: because of what would happen to all their user expression if they had done what Sony wanted and terminated the accounts it had accused, or if it could even have been liable for simply having provided a service all their users needed for all their online activities—including their completely innocent and expressive ones. As we pointed out in our brief, there are a number of threats to free expression if Sony’s legal theory could succeed: it would (1) leave online expression subject to prior restraint, which the First Amendment forbids, by giving an un-adjudicated infringement notice the power to cause speech (and speakers) to be removed; (2) make online speakers subject to being kicked off the Internet, which the Supreme Court said was not Constitutional in the earlier Packingham v. North Carolina case; and (3) make it possible to censor speakers by pressuring the intermediary providers they depend on, which the Court itself quite recently pointed out is not something the First Amendment allows in the NRA v. Vullo case.
Yet, strangely, none of these issues really made it into the oral argument, save for a bit mumbled by the Solicitor General, also arguing on the side of Cox, who tried to point out (before largely being cut off by Justice Sotomayor) that it would be inequitable to ban someone from using the Internet as a penalty for filesharing. But, for some reason, Cox itself steered clear of these issues, even though it made Cox stand alone, and despite the fact that its fate here will shape the fate of every other Internet platform, and even though making the stakes so apparent would be likely to help Cox, especially if some of the justices do not like some of the facts specific to Cox (like its infamous “f__ the DMCA” email produced during discovery in an earlier round of this litigation). The more the Court thinks this case is just about Cox, the worse off everyone will be, because it is a case that impacts everyone who uses the Internet, for any purpose, including all those that are expressive and innocent.
And even though these free speech issues provide the antidote to the very copyright exceptionalism that prompts people to want to throw the book at them for what their users allegedly had done. How dare people disrespect the rights of others, that thinking goes. But that’s exactly the problem: it’s the rights of others, including their constitutionally-protected rights to express themselves, that are what is truly being threatened by law that unduly protects the power of others to silence them.
It was important to make clear to the justices that what is at stake is not just a run-of-the-mill tort case. No, providing Internet access is not just like providing someone a gun, as Justice Sotomayor analogized. We’re talking about the very ability for the Internet to work as a communications medium by making it legally and practically possible for platforms to provide the technical ability for users to express themselves online, in any of the infinite ways they might do so. That the fundamental ability of the Internet to continue to operate was at stake should have been the headline in this case, but it was barely an afterthought, if that.
Instead we got to see Justices Sotomayor and Jackson display a very dubious grasp of the statutory history of the DMCA. They seemed to read it as a law that was designed to ensure that platforms would have liability for what their users did, instead of as a statute designed to do the exact opposite and make sure we didn’t crush the nascent Internet by making it legally impossible for platforms to provide services to their users. They also couldn’t seem to understand what incentive platforms would have to respond to infringement notices if they couldn’t be liable for secondary liability anyway. But as we also noted in our amicus brief, the Shelter Capital case illustrates the incentive, because there the Veoh Network platform got financially bled into bankruptcy in the process of successfully winning its liability case. The DMCA is intended to protect platforms from obliteration-by-litigation because when they disappear, so do the avenues people need to speak online. Wouldn’t it be nice if we still had Veoh Networks as an alternative to YouTube? Too bad, the copyright industry sued them out of existence, even though it turned out they weren’t liable after all.
What the DMCA is for, and why it needs to not be stripped from platforms like Cox (or Veoh) so easily, is to make sure such injustice doesn’t happen and online expression isn’t harmed as a result. Because that is what is at stake in this case: if Cox can be held liable for its users’ online activities by simply having provided them the means for engaging with them, or even simply have to answer a case raising the prospect of liability, then it will not be possible for any platforms to ever provide anyone the means to engage online, no matter how expressively and innocently. That silenced future is what will arise if Cox were to lose, and we can only hope at least five justices see it and choose for us all another path.
Filed Under: 1st amendment, copyright, dmca, free speech, secondary liability, supreme court
Companies: cox, sony
