The Register of Copyrights Is Wrong About Cox v. Sony

At a recent Senate Judiciary Subcommittee hearing, Register of Copyrights Shira Perlmutter noted that Congress may need to overturn this year’s unanimous decision in the Cox v. Sony Supreme Court case or create a new “site blocking” regime to force internet service providers (ISPs) to block access to certain internet sites.

The only problem? To put it bluntly, she is wrong.

What Cox Did Not Do

The Cox decision did not bless piracy. It did not gut copyright law. It did not tell ISPs to ignore infringement. And it did not change internet providers’ commitment to working with rightsholders on reasonable, workable anti-piracy efforts.

What Cox did was much simpler: the Court unanimously recognized that the internet is used every day for lawful, productive, and creative purposes, and that internet providers should not be held liable merely because some misuse it for piracy.

That is the right result. Cox restored the line the Digital Millennium Copyright Act, or DMCA, and the court precedent has always drawn: Internet providers are not copyright police and should not be on the hook for everything their subscribers do; they provide critical, general-purpose communications infrastructure. And that role carries serious stakes: as the Solicitor General warned the Court, an overbroad liability rule would pressure Internet providers to cut off essential internet access based on allegations tied to an account, putting lawful users at risk of disconnection.

Anti-Piracy Incentives Remain

That is why the unanimous result (7 justices joining in the majority and 2 joining in a concurring opinion) matters. Cox was not a close call, a partisan turn, or an anti-copyright decision. That’s also why the incentive argument is wrong.

This isn’t conjecture. Internet providers remain interested in working with rightsholders on reasonable, workable approaches to combat online piracy where appropriate. The incentives and realities that have historically driven cooperation are unchanged. Indeed, one major problem before Cox was that providers were cooperating with rightsholders yet still were being sued.

The existing copyright framework remains an important part of how the online ecosystem works together to address infringement. Cox did not dismantle that cooperative framework. It kept that framework from being distorted into open-ended liability for providing internet access.

Don’t Go Down a Dead End—Again

Internet providers want to be at the table. But that cannot mean accepting approaches that do not work, risk lawful access, and tee up the next decade of litigation. We have been down that road before and it was a dead end. There is no reason to take it again.

Lawful markets matter and intellectual property theft should be stopped. But when the conversation is about internet access, there is too much at stake to rewrite Cox or pretend the Court broke something it actually fixed.

This article was updated on June 10 for clarity regarding the number of justices who joined in the majority decision. 

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Author: garagestock