Net piracy vs. free speech? What to know about Atlanta-based Cox's Supreme Court fight with Sony

Caption

Cox Enterprises headquarters is seen in this file photo.

Credit: Wikipedia

TRANSCRIPT

Orlando Montoya: This is All Things Considered. I'm Orlando Montoya. The Supreme Court seems poised to side with Atlanta-based Cox Communications in a lawsuit against Sony Entertainment and others. The entertainment industry alleges Cox didn't do enough to prevent users from pirating copyrighted material, and the lower court already ruled that Cox owes them more than a billion dollars. I'm joined now by University of Georgia law Professor Thomas Kadri. Professor Kadri? Welcome to GPB.  

Thomas Kadri: Thank you for having me.  

Orlando Montoya: So first of all, how did the justices seem to react to these oral arguments?  

Thomas Kadri: Well, it's always a little tough to read too much into just the questioning and oral argument. But it does seem like there's some concern with a rule here that would impose broad liability on internet service providers, ISPs, in cases like this. So I would say there's kind of some caution from the court, it seems, at the very least.  

Orlando Montoya: And is there a concern that it could stifle legal activity on the internet?  

Thomas Kadri: That's right. I think one of the main concerns that comes from this case are the sort of ripple effects of imposing liability. There's no doubt that there are people using the internet to engage in copyright infringement, including really using Cox's service or many other services that are out there. But the potential ripple effects for the average user of the internet and how imposing liability on the ISPs could lead the ISPs to block people's access to the internet. I think that's really driving a lot of the interest in this case.  

Orlando Montoya: Is there a precedent in phones or cable or any other type of thing that we've seen before? The phone companies aren't liable if people conduct illegal activity on the phone.  

Thomas Kadri: That's right, whether it's phones or even maybe before that, thinking about the liability of bookstores for having books on their shelves that maybe violate other laws, either obscenity laws or who knows, maybe similar to this case involving copyright, there are all sorts of times where a company is maybe enabling, in some sense, illegal activity by providing a forum or a way for people to access information that is illegal, and there are often restraints put around how much those entities that are kind of enabling other people's illegal activities, how much they can then be held liable themselves.  

Orlando Montoya: What Sony's argument? Why do they say Cox isn't doing enough?  

Thomas Kadri: Well, look, they say that they provided notice that there was this illegal activity going on by users that were using Cox's services. So they say they were provided notice that there this illegal copyright infringement going on and that once they had that notice from Sony, they needed to do more to block access by the folks who were allegedly infringing on Sony's copyrights.  

Orlando Montoya: Now Sony is suggesting that Cox could restrict speeds at places like universities in order to stifle illegal activity. Does that seem feasible?  

Thomas Kadri: Technologically feasible, perhaps. The ISPs could certainly choose particular locations or particular types of account and then restrict the sorts of speeds that the internet would be offered at those locations. What effect that would have on the running of those places, whether it's a university that would often rely on high-speed internet and sort of mass connectivity or other places where there are multiple users, you know, relying on a single account — places like airports or hospitals, churches, even a lot of businesses where there's kind of shared Wi-Fi access — it's possible to throttle those speeds. But you would certainly be affecting the way in which more and more people would access the internet by doing so.

Orlando Montoya: It seems like there must be many cases of piracy that don't rise to the level of the Supreme Court. How are most cases of piracy dealt with? And do ISPs go after every little bit of illegal activity?  

Thomas Kadri: Well, there are ways in which the ISPs are trying to detect copyright infringement and other types of piracy all the time just through the technologies that they use in their systems to try and detect copyright infringement. The same is true, for example, on online platforms and social media that have quite sophisticated detection mechanisms for copyright infringment. Now, there's often not a legal case that comes out of that because people's content is just blocked or removed. And sometimes they'll complain about it, oftentimes they won't. So a lot of these allegations of copyright infringement get sorted out before there's ever a legal case. And there often is no legal case that comes out of it.  

Orlando Montoya: Is that one way that normal users — or, should we say, everyday customers — could be impacted by this case?  

Thomas Kadri: Absolutely. Yeah, I think, you know, there's a way in which just your average individual could get caught up in this. There's a, you know, a misplaced allegation of copyright infringement. And then that singular user ends up being blocked without good reason. And then there's the case of somebody who really has done absolutely nothing wrong, but they're just using, you know, let's say Wi-Fi in a, in a sort of a shared area. And then the entire access gets blocked as a result of someone else's activity. In both of those circumstances, I think we can imagine how the everyday customer no longer has access to a service. And it's not just any old service, right? This is access to the internet. Full stop. Not just access to particular sites, but the whole internet and in some parts of the country, there is really only one internet service provider that's providing service to that entire area. So it's not even like you can just switch providers and restore your internet access.  

Orlando Montoya: And does that become a free speech argument, then?  

Thomas Kadri: I think it does. You know, there have been some interesting briefs filed before the court, not by the parties, but by various amicus briefs, including by the ACLU and some other leading sort of free speech organizations, arguing that at the very least the First Amendment should be doing some work in the background. And maybe there is even a kind of a direct First Amendment challenge that could be raised to impositions of liability on the scale that we saw in the lower courts. Here, that the rules for when somebody can be held liable for contributing towards copyright liability should have to face up to some kind of First Amendment scrutiny if it's going to lead companies like Cox and others to act upon and kind of deny access to a bunch of people's ability to get on the internet.  

Orlando Montoya: I've been talking with University of Georgia law professor Thomas Kadri about the Cox Communications vs. Sony Entertainment case at the Supreme Court. We'll watch for this decision. Thank you very much for talking with me today.  

Thomas Kadri: Thank you for having me.