Cox v. Sony: SCOTUS Trims ISP Liability in “Seismic Decision”

Will Milliken, director and co-chair of Sterne Kessler’s appellate practice, spoke to World IP Review on the recent U.S. Supreme Court decision in Cox Communications, Inc. v. Sony Music Entertainment, Inc. ruling that Internet Service Providers (ISPs) are not held liable for copyright infringement committed by their customers.

Milliken stated one high-level takeaway for copyright-dependent companies, “The model of going after upstream providers of the means of infringement (like ISPs) is going to be very difficult, if not impossible, to execute given this decision.”

He also noted, “While there could be edge cases, it’s hard to envision a copyright plaintiff being able to satisfy that standard against an upstream provider when you’re talking about a product (the internet) that so plainly has many non-infringing uses.”

For in-house counsel at copyright-dependent brands wondering where they should direct their enforcement efforts, Milliken proposed a coordinated effort to target direct infringers. “This is obviously a less efficient and cost-effective model (which is why copyright holders started going upstream in the first place), but it does have precedent,” he explained. “If executed effectively, the in terrorem effect of such suits could substantially reduce the incidence of infringement.”