This week courts have given us two different and contradictory verdicts about intermediary liability.
In a case going all the way back to 2018, Cox Communications, the cable and broadband company, was accused of failing to live up to its legal obligation to limit music piracy.
To simplify, Cox had an obligation to cancel the accounts of users who had been warned multiple times about engaging in music piracy, but Cox did not. Cox of course had a financial interest in not cancelling users accounts.
So Cox was sued by the major music labels, and the labels won in lower courts. But this week the Supreme Court continued its skepticism of intermediary liability by finding that Cox was not liable, because Cox did not “actively encourage infringement.”
According to the New York Times, “in its opinion released on Wednesday, the court said a company was not liable for “merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.”
Writing for the court, Justice Clarence Thomas said a provider like Cox was liable “only if it intended that the provided service be used for infringement” and if it, for instance, “actively encourages infringement.”
So, an intermediary has to intend for something to happen, and actively encourage that thing to happen, in order to incur liability.
The Court’s unanimous 9-0 decision is of course definitive, even if it seems to fly in the face of some provisions of the Digital Millenium Copyright Act (DMCA).
At IPI, we’ve never been comfortable with intermediary liability, even though we’re also uncomfortable with copyright piracy.
But that leads us to two other cases this week, where in Los Angeles on Wednesday, a jury decided in favor of a plaintiff who had claimed that Meta and YouTube hooked her with addictive features — a verdict validating a novel legal strategy holding the companies accountable for personal injury. And a day earlier in New Mexico, a jury found Meta liable for failing to safeguard users of its apps from child predators.
So, let’s get this straight: Intermediaries are not liable for their users’ illegal activity unless they intend it and actively encourage it, but they are liable for harm to their users, including self-harm, even if they don’t intend it and don’t actively encourage it.
Now, of course the details of the cases are different, and details matter.
Still, the Supreme Court is not a fan of intermediary liability, and that’s a good thing. Which means if Meta and Google appeal all the way to the Supreme Court, there is a reasonable chance that they will succeed.