In Cox v. Sony, a jury found internet service provider Cox Communications liable for contributory and vicarious copyright infringement after it failed to terminate subscribers accused of repeated copyright infringement of music. The Fourth Circuit upheld the jury’s ruling, thereby adopting a broad interpretation of secondary liability contrary to well-established case law.
The case is now pending before the U.S. Supreme Court, and oral argument was heard by the justices earlier this month. Many civil liberties groups filed amicus briefs, warning that the Fourth Circuit decision would force ISPs to routinely cut off internet access based on unverified copyright claims. Furthermore, because many accounts flagged as repeat infringers in this case are institutional accounts, the Fourth Circuit’s ruling will effectively force ISPs to cut off Internet services to groups of users when even one in that group had allegedly infringed copyright.
To find out more about how the outcome of the lawsuit may impact educational institutions and academic authors, we are interviewing Stephen Wolfson, Assistant General Counsel and Copyright Advisor at the University of Pennsylvania. This interview reflects Stephen’s personal opinion and does not represent the official position of the University of Pennsylvania.
First off, what was your initial reaction when you learned about Cox v. Sony? What’s at stake for educational institutions?
Like most of the conversation surrounding Cox v. Sony, my first thoughts were about the implications for internet access broadly, rather than its potential impact on educational institutions more specifically. As many people argue, including several amici in the case, the impact of requiring ISPs to remove internet access for users based on unvetted copyright infringement claims could be dramatic.
Internet access is essentially required for someone to be a full participant in modern society, and people often don’t have many options when selecting their internet service providers. So, being removed from one service could cut someone off from so much of today’s world. What is more, it could result in innocent users also losing their access to the internet either because they share access with an alleged infringer or due to inaccurate infringement claims. As such, a decision for Sony in this case could be very problematic
The problems that Cox v. Sony presents for educational institutions are, of course, similar. Universities could be in a difficult position if they have to cut internet access off for members of their communities who are accused of committing copyright infringement. Because of how important it is, removing a student or faculty member from internet access would have more or less the same effect as suspending or terminating them. Can a student in 2025/2026 be a full participant in their education, or can a faculty member fully conduct their research and writing, without web access? It seems doubtful. I’m concerned about people using illegitimate copyright claims to censor or otherwise hurt internet access for students, faculty, and university in general. In the past, litigants have tried to use copyright law to protect privacy and/or reputational rights and not strictly the economic rights protected by copyright law. And it’s easy for me to imagine someone using dubious claims to disrupt research, writing, and courses they don’t like.
After sitting with the case for a while, I also began to consider what implications a heightened secondary liability standard could have on technology more generally, beyond ISPs. If distributors of technologies that enable — but don’t necessarily lead to — copyright infringement have a duty to restrict access of those technologies for users who are likely (but not guaranteed) to use them for copyright infringement purposes, lest they be liable under a contributory liability theory, how will those distributors respond? Will they be more reluctant to distribute their technologies for fear of litigation? Will they restrict the uses of those technologies in ways that limit both infringing and non-infringing or fair uses? The secondary liability scheme laid out by cases like Sony v. Universal and MGM v. Grokster supports the distribution of technologies that could serve copyright infringement purposes as long as those technologies are capable of “substantial noninfringing” uses and as long as the providers don’t actively encourage the use of their technologies for copyright infringement purposes. Could Cox v. Sony upset that system in ways that harm access to or development of beneficial technologies? I don’t know the answer to these questions, but I worry about the harm to legitimate and beneficial technologies if risk-averse developers fear contributory infringement too much.
Section 512 of the DMCA offers safe harbors for service providers — including an education-specific provision under 512(e). In your view, is the 512(e) educational safe harbor adequate to protect universities operating as ISPs?
First, let me note a caveat that I have never personally dealt with 512(e). So, this response addresses my feelings about 512(e) separate from its practical function or application.
512(e) strikes me as very limited. By its text, 512(e) only applies to faculty and graduate students who are employees of a university. Some quick (and admittedly dated) research tells me there are maybe 5 times as many undergraduates as there are graduate students and faculty members at universities in the U.S. Additionally, universities whose libraries are open to the public may also provide web access to community members who are neither students, nor faculty or staff. Altogether, because 512(e) doesn’t seem to cover a large percentage of people who may have access to the web through universities, I don’t think it provides much reassurance concerning the issues raised by Cox v. Sony.
The plaintiffs in Cox essentially argued that ISPs must terminate service to users after receiving infringement notices. How feasible is it for a university to identify and disconnect a single infringer without affecting innocent users?
From a legal perspective, the plaintiffs’ position raises at least two concerns: I wonder whether rightsholders can accurately pinpoint certain copyright infringers on a university network service, and, to the extent that they can identify individual potential copyright infringers, how certain are they that these individuals are actually committing copyright infringement? It seems to me almost guaranteed that innocent users would be caught up in at least some attempts to disconnect alleged infringers. A few of the amici in Cox point to studies that suggest that rightsholder infringement notices are often inaccurate and can easily capture innocent noninfringers along with actual infringers.
Moreover, it is not clear to me that these alleged copyright infringers are necessarily actual copyright infringers. There are potentially many reasons why some activities that appear to be infringement are really permissible uses. Exceptions to the exclusive rights granted by copyright law allow users to do all kinds of things with copyrighted works that may look like copyright infringement until you thoroughly investigate the particular uses.
Would universities outsource their network infrastructure in order to mitigate such legal risks?
It is certainly possible that at least some universities would outsource their network infrastructure to third parties to try to insulate themselves from liability.
On that point, I worry that these third parties would put additional restrictions on student and faculty use of the network services that are even greater than the restrictions that are already there. This could happen because commercial service providers may not support the same mission that universities have to educate their students, to support the research and writing of their faculty, and to protect academic freedom in general.
How do you balance the university’s obligation to comply with copyright rightsholder’s wishes with its commitment to research and learning, such as in this case, where rightsholders wish to cut off internet access when copyright infringement happens online?
Universities are constantly balancing rightsholder wishes with our commitment to research and learning across several dimensions. First, institutions like the University of Pennsylvania foster the creation of thousands of scholarly works each year. While the university may not have a direct ownership interest in the rights to those works (though I know Eric Harbeson at Authors Alliance recently explored this “thorny question”), we certainly have an interest in supporting the production of these works by our faculty and other affiliated authors. Meanwhile, universities often own or control the rights to many works, and we have our own interests and beliefs in how others should be able to access and use those works. And, of course, we rely on countless works owned by others to enable so much of our scholarly work, but we often can’t use those works in the ways that may best serve our education and research because of copyright restrictions. We may want to reproduce, transmit, and/or perform works like movies or books to support students in their classes, but we can’t, because doing so might be a copyright problem. Similarly, it may be a boon to academic research for us to digitize and make available to the public many parts of our collections, but we can’t, because doing so might be a copyright problem.
All of these are daily concerns in universities like my own. We do our best to support research, learning, and access to high quality information resources, while also respecting the rights and interests of the people who own the rights of the works we use.
But cutting off internet access is a whole other matter altogether. Unlike simply balancing interests, cutting off internet access seems almost completely incompatible with modern research and education.
So, speaking only for myself and not my institution, I would hesitate to embrace a policy where students and faculty lose internet access based on unvetted allegations of copyright infringement. Given the significant consequences, I think there would need to be some system for reviewing unvetted infringement allegations before a student or faculty member loses access to the internet. Such a system might be challenging to develop and/or implement, but it seems it would be necessary to ensure some sort of due process for alleged infringers before they lose their internet access and all that it comes with for university students or faculty members.
What advice would you offer to general counsels at smaller institutions that may not have the same technical or legal bandwidth to tackle copyright issues? What do you see as some risks and opportunities?
My best advice is that if you have copyright questions, seek help from other general counsels who have more copyright experience. There are several great communities of people who deal with academic copyright issues that are always happy to help point you in the right direction. But there is also a lot of bad information about copyright online, so be careful. Don’t be afraid to ask for help.
Looking ahead, what principles should guide courts and lawmakers in shaping copyright policy?
The concept of balance is core to copyright law. Copyright provides authors with a limited duration monopoly in their works to encourage those authors to create and share their works with the public. Meanwhile, once the copyright monopoly expires, works enter the public domain so that we may all use, reuse, and remix them however we want without any restrictions. Moreover, copyright has several “safety valves” — like fair use — that give users rights that rightsholders can’t control, to ensure that copyright doesn’t impermissibly stifle free speech or otherwise prevent us from benefiting from these works in ways that are still fair to the rightsholders. Without this balance, copyright falls apart.
So, courts need to remember that copyright law requires balance to function properly when they are trying to thread the needle between rightsholder and user interests. Similarly, lawmakers should avoid tilting the balance in any one direction with new policies, should actively monitor things like technological developments that can shift the balance one way or the other, and should otherwise explore ways to maintain copyright’s balance and to ensure that it serves us all.
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