Cox: Biggest infringers aren’t residential users
Rosenkranz countered that Cox created its own anti-infringement program, sent out hundreds of warnings a day, suspended thousands of accounts a month, and worked with universities. He said that “the highest recidivist infringers” cited in the case were not individual households, but rather universities, hotels, and regional ISPs that purchase connectivity from Cox in order to resell it to local users.
If Sony wins the case, “those are the entities that are most likely to be cut off first because those are the ones that accrue the greatest number of [piracy notices],” the Cox lawyer said. Even within a multi-person household where the IP address is caught by an infringement monitoring service, “you still don’t know who the individual [infringer] is,” he said. At another point in the hearing, he pointed out that Sony could sue individual infringers directly instead of suing ISPs.
Justice Amy Coney Barrett asked Cox, “What incentive would you have to do anything if you won? If you win and mere knowledge [of infringement] isn’t enough, why would you bother to send out any [copyright] notices in the future? What would your obligation be?”
Rosenkranz answered, “For the simple reason that Cox is a good corporate citizen that cares a lot about what happens on its system. We do all sorts of things that the law doesn’t require us to do.” After further questioning by Barrett, Rosenkranz acknowledged that Cox would have no liability risk going forward if it wins the case.
Kagan said the DMCA safe harbor, which protects entities from liability if they take steps to fight infringement, would “seem to do nothing” if the court sides with Cox. “Why would anybody care about getting into the safe harbor if there’s no liability in the first place?” she said.
