DOJ Backs Cox over Sony in Competing SCOTUS Petitions on ISP Liability

By Editorial Team

The U.S. Department of Justice (DOJ) has filed a brief with the U.S. Supreme Court in the cases of Sony Music Entertainment, Inc. v. Cox Communications, Inc. and Cox Communications, Inc. v. Sony Music Entertainment, Inc. The DOJ is urging the Court to deny Sony's petition and grant Cox's.

In July 2018, music publishers, including Sony, Arista Records, Warner Music, and Universal Music Group, filed copyright claims against Cox, alleging that Cox was liable for the infringement of 10,017 musical works distributed by the ISP's subscribers. A 2020 jury verdict found Cox liable for vicarious and contributory infringement, resulting in a $1 billion damages verdict against Cox.

In February 2024, the Fourth Circuit ruled on Cox's appeal, affirming the contributory infringement finding but remanding for a new trial on damages. Cox petitioned the Supreme Court in August 2024, questioning the Fourth Circuit's decision on contributory infringement and willfulness under 17 U.S.C. § 504(c).

Sony filed a competing petition, questioning the profit requirement for vicarious liability. Amici representing ISPs and music publishers have also weighed in on each petition. The Solicitor General was invited to file a brief on November 25.

The DOJ recommends that the High Court grant Cox's petition on both questions and deny Sony's. The DOJ highlighted the importance of the contributory infringement question and the divergent approaches taken by courts of appeals. The DOJ also suggested a review of the jury instruction given in Cox's case regarding willfulness.

Regarding Sony's vicarious liability question, the DOJ stated that there is no disagreement among the courts of appeals on the profit requirement for vicarious infringement.

Overall, the DOJ's brief emphasizes the legal significance of the issues at hand and the need for clarity in determining ISP liability in copyright infringement cases.