Così l’analitica e interessante Sony, Arista, Warner Bros ed altri v. Cox Communications , 4° circuito d’ appello, n. 21.-1168, 20.02.2024 , promossa dalle major dell’industria culturale contro un access provider:
<<A defendant may be held vicariously liable for a third party’s copyright infringement if the defendant “[1] profits directly from the infringement and [2] has a right and ability to supervise the direct infringer.”>>
– I –
Vicarious liability:
<<As these cases illustrate, the crux of the financial benefit inquiry is whether a causal relationship exists between the infringing activity and a financial benefit to the defendant.
If copyright infringement draws customers to the defendant’s service or incentivizes them to pay more for their service, that financial benefit may be profit from infringement. See, e.g., EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 99 (2d Cir. 2016).
But in every case, the financial benefit to the defendant must flow directly from the third party’s acts of infringement to establish vicarious liability. See Grokster, 545 U.S. at 930 & n.9; Nelson-Salabes, 284 F.3d at 513.
To prove vicarious liability, therefore, Sony had to show that Cox profited from its
subscribers’ infringing download and distribution of Plaintiffs’ copyrighted songs. It did not.
The district court thought it was enough that Cox repeatedly declined to terminate infringing subscribers’ internet service in order to continue collecting their monthly fees.
Evidence showed that, when deciding whether to terminate a subscriber for repeat infringement, Cox considered the subscriber’s monthly payments. See, e.g., J.A. 1499 (“This customer will likely fail again, but let’s give him one more chan[c]e. [H]e pays 317.63 a month.”). To the district court, this demonstrated the requisite connection between the customers’ continued infringement and Cox’s financial gain.
We disagree. The continued payment of monthly fees for internet service, even by repeat infringers, was not a financial benefit flowing directly from the copyright infringement itself. As Cox points out, subscribers paid a flat monthly fee for their internet access no matter what they did online. Indeed, Cox would receive the same monthly fees even if all of its subscribers stopped infringing. Cox’s financial interest in retaining subscriptions to its internet service did not give it a financial interest in its subscribers’ myriad online activities, whether acts of copyright infringement or any other unlawful acts.
An internet service provider would necessariily lose money if it canceled subscriptions, but that demonstrates only that the service provider profits directly from the sale of internet access. Vicarious liability, on the other hand, demands proof that the defendant profits directly from the acts of infringement for which it is being held accountable>>
– II –
<<We turn next to contributory infringement. Under this theory, “‘one who, with
knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another’ is liable for the infringement, too.”>>
<<The evidence at trial, viewed in the light most favorable to Sony, showed more than mere failure to prevent infringement. The jury saw evidence that Cox knew of specific instances of repeat copyright infringement occurring on its network, that Cox traced those instances to specific users, and that Cox chose to continue providing monthly internet access to those users despite believing the online infringement would continue because it wanted to avoid losing revenue. Sony presented extensive evidence about Cox’s increasingly liberal policies and procedures for responding to reported infringement on its
network, which Sony characterized as ensuring that infringement would recur. And the jury reasonably could have interpreted internal Cox emails and chats as displaying contempt for laws intended to curb online infringement. To be sure, Cox’s antiinfringement efforts and its claimed success at deterring repeat infringement are also in the record. But we do not weigh the evidence at this juncture. The evidence was sufficient to support a finding that Cox materially contributed to copyright infringement occurring on its network and that its conduct was culpable. Therefore we may not disturb the jury’s verdict finding Cox liable for contributory copyright infringement>>
(notizia e link dal blogi di Eric Goldman)