Supreme Court Petitioned to Clarify ISP Liability in Copyright Infringement Cases

March 18, 2025 Comments Off on Supreme Court Petitioned to Clarify ISP Liability in Copyright Infringement Cases
Contents hide
1 Supreme Court Petitioned to Clarify ISP Liability in Copyright Infringement Cases
1.1 Grande's Appeal to the Supreme Court
1.2 Challenges and Ambiguities for ISPs
1.3 Unresolved Issues Under the DMCA

 

Supreme Court Petitioned to Clarify ISP Liability in Copyright Infringement Cases

By Ernesto Van der Sar, March 18, 2025

In late 2022, major music corporations such as Warner Bros. and Sony Music secured a legal victory against Internet Service Provider (ISP) Grande Communications. The lawsuit alleged that Grande, a subsidiary of Astound Broadband, inadequately addressed copyright infringement by its subscribers, particularly by not terminating repeat offenders. This two-week trial concluded with a Texas federal jury finding Grande guilty of willful contributory copyright infringement, resulting in a $47 million damages award to the record labels.
While the Fifth Circuit Court of Appeals upheld the infringement verdict, it overturned the lower court's damages calculation, necessitating a new trial to reassess the appropriate amount. Despite this, Grande continues to challenge the liability ruling.

Grande's Appeal to the Supreme Court

Recently, Grande submitted a petition to the Supreme Court, urging a review of the Fifth Circuit's decision. The core issue is the extent of ISP liability in contributory copyright infringement cases. Grande describes this as an “exceptionally important question under the Copyright Act,” emphasizing an ongoing “nationwide litigation campaign by the U.S. recording industry” aiming to hold ISPs accountable for their customers' copyright violations.

The petition presents a fundamental question:

“Whether an ISP is liable for contributory copyright infringement by (i) providing content-neutral internet access to the general public and (ii) failing to terminate that access after receiving two third-party notices alleging someone at a customer's IP address has infringed.”

Grande disputes the notion that ISPs should bear liability under these circumstances, a stance shared by Cox Communications, which filed a similar petition previously. Both ISPs caution that the current legal landscape could have severe repercussions for the industry and consumers alike.

Challenges and Ambiguities for ISPs

Grande's petition highlights inconsistencies in lower court rulings regarding the standards for contributory copyright infringement. It references the Supreme Court's recent decision in Twitter v. Taamneh, which stated that online platforms have no inherent “duty” to “terminate customers after discovering that the customers were using the service for illicit ends.”

The petition underscores the practical difficulties ISPs face, such as:
  • Determining the validity of copyright infringement notices.
  • Deciding how many notices should trigger termination of services, especially when millions are received.
  • Balancing the fairness of disconnecting subscribers from essential services without clear guidelines.
Grande argues that without a clear framework, ISPs might feel compelled to disconnect subscribers preemptively, potentially harming innocent users. The petition states:

“Respondents ignore the significant practical challenges that ISPs face in making termination decisions, especially without any clear framework dictating when action is required—or what process and protections subscribers should receive.”

The petition further contends that the current approach is “unworkable and deeply concerning,” misinterprets the law, and could disrupt the ISP industry while unjustly affecting innocent subscribers.

Unresolved Issues Under the DMCA

The existing precedents are rooted in the Digital Millennium Copyright Act (DMCA), which leaves several critical questions unanswered, including:

  • What constitutes a proper “repeat infringer” policy?
  • What thresholds justify internet disconnections?
  • How should ISPs handle the vast number of infringement notices they receive?
These ambiguities persist, even as ISPs face substantial liability. Grande's petition is now before the Supreme Court, which will decide whether to hear the case—a decision that could have significant implications for ISPs and their subscribers nationwide.

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