Record labels Sony, Warner, and Universal told the Supreme Court that Cox chose not to terminate repeat copyright infringers to avoid a loss in revenue, despite being sent three or more infringement notices for each subscriber at issue in the case. “[W]hile Cox stokes fears of innocent grandmothers and hospitals being tossed off the Internet for someone else’s infringement, Cox put on zero evidence that any subscriber here fit that bill,” record labels told the court. “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.”
ISP has “incomplete knowledge” of infringement
At oral arguments, Cox attorney Joshua Rosenkranz said the ISP created an anti-infringement program, sent out hundreds of warnings a day, suspended thousands of accounts a month, and worked with universities to limit infringement. Rosenkranz told the court that “the highest recidivist infringers” cited in the case were universities, hotels, and regional ISPs that purchase connectivity from Cox, rather than individual households.
“According to Cox, it created a system of responding to the notices that it received from MarkMonitor,” Thomas wrote. “After the second MarkMonitor notice for a subscriber’s account, Cox sent a warning to that subscriber. After additional notices, Cox terminated Internet access to that subscriber’s IP address until the subscriber responded to the warning. If it continued to receive notices for that IP address, Cox suspended service until the subscriber called and received a warning over the phone. After 13 notices, the subscriber was subject to termination of all Internet service.” Cox also contractually prohibits subscribers from using the service to infringe copyrights, Thomas noted.
In addition to criticizing the majority’s reasoning today, Sotomayor criticized Cox’s anti-piracy enforcement efforts during oral arguments. “There are things you could have done to respond to those infringers, and the end result might have been cutting off their connections, but you stopped doing anything for many of them… You did nothing and, in fact, counselor, your clients’ sort of laissez-faire attitude toward the respondents is probably what got the jury upset,” she said at the time.