Trump Administration Opposes ISP Disconnections in Supreme Court Case

In a high-stakes copyright dispute, the Trump administration has filed a brief urging the Supreme Court to review whether Internet service providers (ISPs) can be held liable for contributory infringement simply by continuing to provide broadband access after receiving infringement notices. Solicitor General John Sauer—a Trump nominee—argues that forcing ISPs to terminate subscribers based on unproven allegations risks undermining the safe-harbor framework established under 17 U.S.C. §512 of the Digital Millennium Copyright Act (DMCA) and threatening the open Internet.

Background: Cox v. Sony and the DMCA Safe Harbor Debate

The case originates from a lawsuit filed in 2015 by Sony Music Entertainment and a coalition of major record labels against Cox Communications. A jury initially awarded over $1 billion in statutory damages, finding Cox guilty of willful contributory infringement. On appeal, the Fourth Circuit vacated the damages award—concluding that Cox did not derive a direct financial benefit from subscriber infringement—but upheld the underlying finding of willful contributory infringement.

• Safe Harbor Provisions: Under DMCA Section 512(c), ISPs benefit from a “safe harbor” against copyright claims if they implement and reasonably enforce a repeat-infringer policy, expeditiously disable access upon proper notice, and do not receive a direct financial benefit tied to the infringing activity.
• Material Contribution Standard: Precedents in Sony Corp. v. Universal City Studios (Betamax) and MGM Studios v. Grokster require “culpable intent” or inducement—mere knowledge of infringement without encouragement typically falls short of contributory liability.
• Fourth Circuit Ruling: Cox’s flat‐rate pricing model shielded it from vicarious liability, but the court held the ISP liable for contributory infringement by failing to cut off subscribers after receiving DMCA notices—even though those notices did not identify individual infringers.

Key Legal Questions Presented

1. Does an ISP “materially contribute” to copyright infringement under 17 U.S.C. §512(c) by continuing to provide access after receiving infringement notices?
2. Under what circumstances can a contributory infringer be subject to enhanced statutory damages (up to $150,000 per work) for “willful” infringement?

“Because infringement notices typically identify only IP addresses or account numbers—not individual end users—forcing ISPs to terminate service on that basis would amount to penalizing innocent subscribers in hotels, campuses, and public networks,” the brief states.

Technical Implications for Network Operators

Implementing a robust repeat‐infringer policy poses nontrivial engineering and operational challenges for large ISPs. Typical DMCA takedown notices rely on:

• IP-to-Subscriber Mapping: ISPs log DHCP leases and NAT translations, retaining records for 30–90 days depending on jurisdiction. Accurate correlation of an IP address to a customer account at a given time requires synchronized network clocks and high‐availability logging infrastructure.
• Deep Packet Inspection (DPI) and Traffic Analysis: While some ISPs deploy DPI for network management, privacy regulations and encryption (TLS 1.3, HTTPS Everywhere) limit the capacity to identify infringing payloads at scale without overblocking legitimate traffic.
• Subscriber Notification Systems: Automated platforms integrate DMCA notice feeds (often in XML or CSV) with subscriber databases. Erroneous notices or misattributed IP churn can trigger false positives, risking wrongful disconnections.

Comparative International Frameworks

Several jurisdictions employ “graduated response” or “three strikes” regimes, notably France’s HADOPI law, which suspends service after repeated infringement warnings. However, European data-protection rules (GDPR) and net-neutrality mandates impose strict due-process safeguards:

• France (HADOPI): Three official warnings are issued before temporary suspension; appeals mechanisms protect end users.
• UK (Digital Economy Act): Proposed measures faced parliamentary resistance and were ultimately shelved due to concerns about proportionality and privacy.
• Australia (Code of Practice): Voluntary ISP code limits disconnections and emphasizes educational notices over punitive measures.

Expert Perspectives and Future Outlook

Industry experts warn that the Fourth Circuit decision, if upheld, could chill investment in broadband infrastructure. Dr. Maria Delgado, a network architect and adjunct professor at Stanford Law School, comments: “Forcing ISPs to police content at the network layer contradicts end‐to‐end design principles of the Internet. Such a regime would require DPI at scale, risking collateral damage to encrypted traffic.”

Legal scholars, including Professor Alan Nguyen of Harvard Law, note that the Supreme Court’s decision could reshape the boundaries of contributory infringement doctrine: “A ruling against Cox might embolden rights holders to pursue liability against other intermediaries, from hosting providers to payment processors.”

Latest Developments and Biden Administration Stance

As of June 2025, the Biden administration has not yet issued its own SG brief. Technology trade groups, such as the Internet & Television Association (NCTA), have filed amicus briefs supporting Cox, warning that the 4th Circuit’s approach would create “a de facto content-policing obligation” for every network operator.

The Supreme Court is expected to decide whether to grant certiorari in its October 2025 term. A key factor will be resolving the circuit split on whether passive provision of Internet access constitutes “material contribution” to downstream infringement.

Conclusion

The outcome of Cox Communications v. Sony Music will have far-reaching consequences for ISPs, content owners, and end users. A narrow ruling preserving safe harbor for passive providers would reinforce the DMCA’s balance between incentivizing network investment and protecting copyright. Conversely, an expansive doctrine of contributory liability might force ISPs to develop intrusive monitoring systems or risk severing service to millions of subscribers at the first hint of alleged infringement.