The Supreme Court has signaled its interest in a landmark case that could redefine anti-piracy enforcement. By calling on the Solicitor General to weigh in on the "repeat infringer" dispute between Cox Communications and several record labels, it has become more likely that the Supreme Court will eventually share its opinion on the "billion dollar" piracy controversy.

In 2019, Internet provider Cox Communications lost its legal battle against a group of dozens of record labels, including Sony and Universal.

Following a two-week trial, a Virginia jury held Cox liable for its pirating subscribers. The ISP failed to disconnect repeat infringers and was ordered to pay $1 billion in damages.

This case is one of many. Other ISPs have been accused of being similarly lax in their stance against alleged piracy. Rightsholders believe that ISPs are motivated by profit while the ISPs typically argue that they shouldn’t be held liable for the alleged wrongdoing of subscribers.

Landmark Piracy Battle

Cox challenged the verdict through several routes and in August, filed a petition at the U.S. Supreme Court asking it to hear the case. The Internet provider stressed that the current verdict ‘jeopardizes’ internet access for all Americans.

Around the same time, the music companies filed their own petition, hoping to strengthen the verdict at the Supreme Court. Specifically, the record labels argued that the ISP should also be held liable for vicarious copyright infringement.

Both petitions essentially boil down to questions on liability. Are ISPs liable for copyright infringement if they don’t disconnect subscribers accused of copyright infringement? And can ISPs be held liable for infringing subscribers, even if they don’t directly profit from their activities?

Supreme Court Shows Interest

These writs of certiorari ask the Supreme Court to clarify how current law should be interpreted. The Supreme Court typically has a high barrier to accept new cases but, once greenlighted, they could shape the law for decades to come.

Yesterday, the Supreme Court suggested that it is indeed interested in the questions. In an order where dozens of petitions were denied, those submitted by Cox and the music companies were referred to the Solicitor General.

“The Solicitor General is invited to file a brief in these cases expressing the views of the United States,” the brief comment reads.

From the Supreme Court’s order list (pdf).

The Solicitor General is a high-ranking official in the U.S. Department of Justice who serves as the federal government’s primary lawyer before the Supreme Court. In the present cases, it can express the government’s position on the presented legal questions.

The referral signals that the Supreme Court considers the case to have significant implications for the federal government or federal law. If the Department of Justice agrees, it is more likely that the Supreme Court will take on these cases.

What’s the U.S. Government’s View?

While it’s clear that the Supreme Court is interested in these cases, the Solicitor General’s view is unknown. Thus far, the government has mostly stayed on the sidelines in these matters.

The most concrete suggestion came in 2020, when the U.S. Copyright Office released a report calling for clearer standards on what constitutes “reasonable implementation” of a repeat infringer policy. The perceived lack of clarity has led to inconsistent practices and legal uncertainty.

Those types of legislative changes are typically something that Congress should determine, but the Supreme Court can help to shape the legal interpretation of the DMCA as we know it today.

With hundreds of millions of dollars in damages on the line, a Supreme Court opinion is poised to provide some additional clarity in the ongoing DMCA “repeat infringer” controversy.