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This is a case about the fugitive tolling doctrine -- about whether a criminal defendant's term of supervised release was tolled (that is paused) when she absconded and evaded supervision.

The court holds that the Sentencing Reform Act does not authorize a rule that automatically extends a defendant's term of supervised release when the defendant absconds.

The Ninth Circuit's decision is reversed and remanded.

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HTownAg98 said:

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The SCOTUSblog live blog is down this morning. Boooooo.

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Whether the U.S. Court of Appeals for the 4th Circuit erred in holding that a service provider can be held liable for "materially contributing" to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it; and whether the 4th Circuit erred in holding that mere knowledge of another's direct infringement suffices to find willfulness under 17 U.S.C. 504(c).

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The court reverses the decision of the Fourth Circuit, which had held that because Cox had provided Internet service to known copyright infringers, Cox was itself a willful infringer (and could be held liable for a billion dollars).

"Under our precedents," Thomas wrote, "a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights."

Sotomayor's opinion agrees that Cox cannot be liable, but for a different reason than the majority. She says that the plaintiffs "cannot provide that Cox had the requisite intent to aid copyright infringement for Cox to be liable on common-law aiding-and-abetting theory."

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Rapier108 said:

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Opinion #2 today is Cox Communications v. Sony Music Entertainment

9-0ish by Justice Thomas

Sotomayor and Jackson concur in the judgement.

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Whether the U.S. Court of Appeals for the 4th Circuit erred in holding that a service provider can be held liable for "materially contributing" to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it; and whether the 4th Circuit erred in holding that mere knowledge of another's direct infringement suffices to find willfulness under 17 U.S.C. 504(c).

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The court reverses the decision of the Fourth Circuit, which had held that because Cox had provided Internet service to known copyright infringers, Cox was itself a willful infringer (and could be held liable for a billion dollars).

"Under our precedents," Thomas wrote, "a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights."

Sotomayor's opinion agrees that Cox cannot be liable, but for a different reason than the majority. She says that the plaintiffs "cannot provide that Cox had the requisite intent to aid copyright infringement for Cox to be liable on common-law aiding-and-abetting theory."

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And we're done for the day.

The next opinion day has not been announced, but given the court will be in session most of next week, would not be a surprise to see an opinion day next week.

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BusterAg said:

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The case:
* Sony is saying here that Cox should have stopped providing services to organizations with a history of infringing behavior. Their argument is that there are certain people that are known, serial infringers of copyright that Sony has to continually tell COX to shut down. Instead of playing whack-a-mole for every case of a Russian-based infringer posting a bootleg copy of Men in Black, Cox should just quit providing service to those serial infringers.

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javajaws said:

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BusterAg said:

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The case:
* Sony is saying here that Cox should have stopped providing services to organizations with a history of infringing behavior. Their argument is that there are certain people that are known, serial infringers of copyright that Sony has to continually tell COX to shut down. Instead of playing whack-a-mole for every case of a Russian-based infringer posting a bootleg copy of Men in Black, Cox should just quit providing service to those serial infringers.

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To me it sounds like Sony (and you) want to punish someone for possible future criminal acts given their past criminal behavior. Is that correct? If so, that's not something I would be in favor of and disagree the law should be changed.

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javajaws said:

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BusterAg said:

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The case:
* Sony is saying here that Cox should have stopped providing services to organizations with a history of infringing behavior. Their argument is that there are certain people that are known, serial infringers of copyright that Sony has to continually tell COX to shut down. Instead of playing whack-a-mole for every case of a Russian-based infringer posting a bootleg copy of Men in Black, Cox should just quit providing service to those serial infringers.

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To me it sounds like Sony (and you) want to punish someone for possible future criminal acts given their past criminal behavior. Is that correct? If so, that's not something I would be in favor of and disagree the law should be changed.

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Finally, Sony argues that the DMCA safe harbor would have no effect if Internet service providers are not liable for providing Internet service to known infringers. The DMCA safe harbor protects Internet service providers that terminate repeat infringers "in appropriate circumstances."

(A). Sony argues that Congress must have enacted the DMCA on the presumption that Internet service providers could be held liable in cases such as these [my commentary: where Cox has only terminated service for 32 subscribers out of millions for infringement issues, while also having a lot of internal discovery that shows it is not in Cox's interest to terminate infringers because it hurts revenue.] Sony overreads the DMCA. Sony does not contend that the DMCA expressly imposes liability for Internet service providers who serve known infringers. It does not. The DMCA merely creates new defenses from liability for such providers. And, the DMCA made clear that failure to comply with the safe-harbor rules "shall not bear adversely upon . . . a defense by the service provider that the service provider's conduct is not infringing."

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BusterAg said:

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javajaws said:

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BusterAg said:

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The case:
* Sony is saying here that Cox should have stopped providing services to organizations with a history of infringing behavior. Their argument is that there are certain people that are known, serial infringers of copyright that Sony has to continually tell COX to shut down. Instead of playing whack-a-mole for every case of a Russian-based infringer posting a bootleg copy of Men in Black, Cox should just quit providing service to those serial infringers.

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To me it sounds like Sony (and you) want to punish someone for possible future criminal acts given their past criminal behavior. Is that correct? If so, that's not something I would be in favor of and disagree the law should be changed.

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Interesting. I think it is possible that you misunderstand the case.

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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lb3 said:

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I don't buy the Amazon analogy, even peripherally. Amazon is an active participant and marketer of cloned products.

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solishu said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Exactly this. Record labels during the Napster years started suing piraters and it was a PR nightmare for them because it was labels suing the fans of their artists. So now they're trying to make the ISPs be the "bad guy" and just disconnect users who are pirating. But that user is a paying customer of the ISP, so the ISP doesn't have any incentive to do that (plus open the door to any knock-on effects -- will they have to cut off access to someone who has slandered someone else on social media so they don't slander them again?)

This case was a perfect example of the media trying to have its cake and eat it too. Good SCOTUS.

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Ozzy Osbourne said:

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How did a case end up at the Supreme Court with a 9-0 verdict? Shouldn't there be some dissent if it can't be resolved in the lower courts?

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BusterAg said:

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solishu said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Exactly this. Record labels during the Napster years started suing piraters and it was a PR nightmare for them because it was labels suing the fans of their artists. So now they're trying to make the ISPs be the "bad guy" and just disconnect users who are pirating. But that user is a paying customer of the ISP, so the ISP doesn't have any incentive to do that (plus open the door to any knock-on effects -- will they have to cut off access to someone who has slandered someone else on social media so they don't slander them again?)

This case was a perfect example of the media trying to have its cake and eat it too. Good SCOTUS.

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I'm not saying SCOTUS is bad. The law is what the law is. SCOTUS ruled in favor of the rule of law. I'm saying the law sucks. Take out the part where not following safe harbor doesn't imply liability, and this goes the other way.

This thing went to the jury. They determined that COX was not following the safe harbor rules by cutting off customers "in appropriate circumstances". COX cut off only 32 serial infringers out of millions of customers, and admitted internally that they didn't want to because of money. Is that following the safe harbor? That sounds like a fact determination by a jury to me.

But SCOTUS says it doesn't matter, because DMCA provides protection even if ISPs go outside of the safe harbor. That is stupid. That doesn't exist in, say, securities law. So, change the law. Make them follow the safe harbor in a way that a jury would agree they are following the safe harbor, just like in every other industry.

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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solishu said:

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BusterAg said:

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solishu said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Exactly this. Record labels during the Napster years started suing piraters and it was a PR nightmare for them because it was labels suing the fans of their artists. So now they're trying to make the ISPs be the "bad guy" and just disconnect users who are pirating. But that user is a paying customer of the ISP, so the ISP doesn't have any incentive to do that (plus open the door to any knock-on effects -- will they have to cut off access to someone who has slandered someone else on social media so they don't slander them again?)

This case was a perfect example of the media trying to have its cake and eat it too. Good SCOTUS.

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I'm not saying SCOTUS is bad. The law is what the law is. SCOTUS ruled in favor of the rule of law. I'm saying the law sucks. Take out the part where not following safe harbor doesn't imply liability, and this goes the other way.

This thing went to the jury. They determined that COX was not following the safe harbor rules by cutting off customers "in appropriate circumstances". COX cut off only 32 serial infringers out of millions of customers, and admitted internally that they didn't want to because of money. Is that following the safe harbor? That sounds like a fact determination by a jury to me.

But SCOTUS says it doesn't matter, because DMCA provides protection even if ISPs go outside of the safe harbor. That is stupid. That doesn't exist in, say, securities law. So, change the law. Make them follow the safe harbor in a way that a jury would agree they are following the safe harbor, just like in every other industry.

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Why stop at the ISP? The violators used electricity to commit the infringement. Electric company should be just as liable than the ISP shouldn't they?

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BusterAg said:

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solishu said:

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BusterAg said:

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solishu said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Exactly this. Record labels during the Napster years started suing piraters and it was a PR nightmare for them because it was labels suing the fans of their artists. So now they're trying to make the ISPs be the "bad guy" and just disconnect users who are pirating. But that user is a paying customer of the ISP, so the ISP doesn't have any incentive to do that (plus open the door to any knock-on effects -- will they have to cut off access to someone who has slandered someone else on social media so they don't slander them again?)

This case was a perfect example of the media trying to have its cake and eat it too. Good SCOTUS.

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I'm not saying SCOTUS is bad. The law is what the law is. SCOTUS ruled in favor of the rule of law. I'm saying the law sucks. Take out the part where not following safe harbor doesn't imply liability, and this goes the other way.

This thing went to the jury. They determined that COX was not following the safe harbor rules by cutting off customers "in appropriate circumstances". COX cut off only 32 serial infringers out of millions of customers, and admitted internally that they didn't want to because of money. Is that following the safe harbor? That sounds like a fact determination by a jury to me.

But SCOTUS says it doesn't matter, because DMCA provides protection even if ISPs go outside of the safe harbor. That is stupid. That doesn't exist in, say, securities law. So, change the law. Make them follow the safe harbor in a way that a jury would agree they are following the safe harbor, just like in every other industry.

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Why stop at the ISP? The violators used electricity to commit the infringement. Electric company should be just as liable than the ISP shouldn't they?

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Interesting argument.

If the electric company has knowledge that the only thing that one of their electric customers uses their electricity for copyright violations, and that is the only reason that they use that electricity, you might have a case, and the electric company has the infrastructure to shut down only the infringing activity and they don't, you might have a case.

But, asking the electric company to somehow design an electron that specifies where that electron is generated and where it is going seems to be a bit of an overreach.

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BTKAG97 said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Agreed. ISPs shouldn't be policing how people use the internet. ISPs shouldn't even "snoop" a user's browsing history and policing goes beyond that.

Services like Amazon or even Ebay, who might take a cut from each transaction, seem to fit better with Sony's argument as they benefit directly from the bad actor.

I'm not so sure regarding services like YouTube and Spotify even though those platforms are what are used to dispense copyrighted digital content. Their benefit is typically more indirect via service fees and commercials.

And while we are dis using liability, there's the issue regarding safety (see the NM vs Meta thread - among others). This is more of a legal obligation issue instead of a "promoting" the bad actors in order to benefit liability issue.

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lb3 said:

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BusterAg said:

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solishu said:

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BusterAg said:

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solishu said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Exactly this. Record labels during the Napster years started suing piraters and it was a PR nightmare for them because it was labels suing the fans of their artists. So now they're trying to make the ISPs be the "bad guy" and just disconnect users who are pirating. But that user is a paying customer of the ISP, so the ISP doesn't have any incentive to do that (plus open the door to any knock-on effects -- will they have to cut off access to someone who has slandered someone else on social media so they don't slander them again?)

This case was a perfect example of the media trying to have its cake and eat it too. Good SCOTUS.

---

I'm not saying SCOTUS is bad. The law is what the law is. SCOTUS ruled in favor of the rule of law. I'm saying the law sucks. Take out the part where not following safe harbor doesn't imply liability, and this goes the other way.

This thing went to the jury. They determined that COX was not following the safe harbor rules by cutting off customers "in appropriate circumstances". COX cut off only 32 serial infringers out of millions of customers, and admitted internally that they didn't want to because of money. Is that following the safe harbor? That sounds like a fact determination by a jury to me.

But SCOTUS says it doesn't matter, because DMCA provides protection even if ISPs go outside of the safe harbor. That is stupid. That doesn't exist in, say, securities law. So, change the law. Make them follow the safe harbor in a way that a jury would agree they are following the safe harbor, just like in every other industry.

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Why stop at the ISP? The violators used electricity to commit the infringement. Electric company should be just as liable than the ISP shouldn't they?

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Interesting argument.

If the electric company has knowledge that the only thing that one of their electric customers uses their electricity for copyright violations, and that is the only reason that they use that electricity, you might have a case, and the electric company has the infrastructure to shut down only the infringing activity and they don't, you might have a case.

But, asking the electric company to somehow design an electron that specifies where that electron is generated and where it is going seems to be a bit of an overreach.

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Do we know that the Cox user only hosted a pirated Men In Black video and didn't use any other portion of their data pipe for legal purposes like pron surfing?

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Rapier108 said:

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Opinion #2 today is Cox Communications v. Sony Music Entertainment

9-0ish by Justice Thomas

Sotomayor and Jackson concur in the judgement.

Quote:

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Whether the U.S. Court of Appeals for the 4th Circuit erred in holding that a service provider can be held liable for "materially contributing" to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it; and whether the 4th Circuit erred in holding that mere knowledge of another's direct infringement suffices to find willfulness under 17 U.S.C. 504(c).

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The court reverses the decision of the Fourth Circuit, which had held that because Cox had provided Internet service to known copyright infringers, Cox was itself a willful infringer (and could be held liable for a billion dollars).

"Under our precedents," Thomas wrote, "a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights."

Sotomayor's opinion agrees that Cox cannot be liable, but for a different reason than the majority. She says that the plaintiffs "cannot provide that Cox had the requisite intent to aid copyright infringement for Cox to be liable on common-law aiding-and-abetting theory."

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And we're done for the day.

The next opinion day has not been announced, but given the court will be in session most of next week, would not be a surprise to see an opinion day next week.

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BusterAg said:

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BTKAG97 said:

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MouthBQ98 said:

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The service provider is a service provider, not a deputized law enforcement agent. If their customers are meeting the same service agreement and customer requirements as other customers when they sign up for service and create accounts, then go on to abuse the account, it is not up to the provider to police the law. It is up to the damaged party to sue or press charges and law enforcement to request account deactivation.

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Agreed. ISPs shouldn't be policing how people use the internet. ISPs shouldn't even "snoop" a user's browsing history and policing goes beyond that.

Services like Amazon or even Ebay, who might take a cut from each transaction, seem to fit better with Sony's argument as they benefit directly from the bad actor.

I'm not so sure regarding services like YouTube and Spotify even though those platforms are what are used to dispense copyrighted digital content. Their benefit is typically more indirect via service fees and commercials.

And while we are dis using liability, there's the issue regarding safety (see the NM vs Meta thread - among others). This is more of a legal obligation issue instead of a "promoting" the bad actors in order to benefit liability issue.

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Let's be clear here, ISPs shut down customers due to the content of their internet traffic all the time.

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