Clarence Thomas Questions ISP Liability for User Copyright Infringement

ISP Liability and User Infringement

• 💡 The Fourth Circuit held that an internet service provider (ISP) can be liable for not removing enough accused infringers from the internet.
• 📌 This theory is unsupported by tort or copyright law, as explicitly rejected by this court in Twitter, which stated there is no duty for providers to terminate customers for illegal use.
• ⚠️ Liability cannot be based on a mere failure to take affirmative steps to prevent infringement, as established in Groster.

The Role of Knowledge and Culpability

• 🧠 Knowledge alone does not create the necessary culpability for infringement.
• ⚡ The consequences of holding ISPs liable are cataclysmic, forcing them to cut off internet access for entire communities to avoid liability.
• 🎯 ISPs should not be turned into internet police for all online torts, as this would disrupt essential commerce and speech.

Contributory Liability and Common Law

• ⚖️ Contributory liability for copyright requires malfeasance with the purpose of fostering the bad act, not passive non-feasance.
• 🚫 There is no liability for sales to the general public on the same terms, regardless of eventual use.
• 🔍 In cases like this, where customer actions are invisible to the ISP in real-time, knowing an account will infringe does not make the ISP an accomplice.
• 📚 The basis of contributory liability for copyright should adopt the narrowest version of common law possible, as Congress has not directly spoken on the issue.
• 📈 Cases like Twitter and Smith & Wesson apply to circumstances involving an arms-length seller selling to millions, where the seller does not intend to foster the tort.