SCOTUS Weighs Cox v. Sony: A Test of Global ISP Liability

William Milliken, director in Sterne Kessler’s Trial & Appellate and Electronic Practice Groups, spoke with World IP Review on the online copyright infringement case, Cox Communications, Inc. v. Sony Music Entertainment, Inc., at the U.S. Supreme Court.

Milliken commented that, if the Court sides with Cox, “there is zero economic incentive for ISPs to try to police copyright infringement. Once they provide the service, they essentially don’t care whether their users infringe or not, because they’re not going to be on the hook for that.” He continued, “Some of the justices seemed troubled by that, and also seemed troubled by the implications that it could have for other areas of the law.”

On the other hand, Milliken said, “The justices seem to be concerned that the rule Sony is pushing for would put ISPs in the position of basically being the internet police and potentially kicking large swathes of people off the internet—because one person associated with a given ISP address has uploaded or downloaded copyrighted material without permission.”

Given the implications of the two extreme positions, Milliken explained, the Court might want to find a compromise position—but neither party has fleshed out what a middle-ground rule would look like. He said, “So if the court wants to do that, it’s on its own, and in some sense, it would have to come up with something itself, which is difficult.”