U.S. Supreme Court justices pressed Cox Communications on whether internet service providers could ever be liable for their customers' online piracy if it defeated a $1 billion case brought by music companies, with Justice Ketanji Brown Jackson questioning the company's attorney Monday if "selling internet services can ever be culpable conduct."

"Is that the position that you're taking?" Justice Jackson asked Joshua Rosenkranz, the Orrick Herrington & Sutcliffe LLP attorney arguing on behalf of Cox.

"Your Honor, the position we're taking is not that an ISP can never be culpable," Rosenkranz said, "but an ISP can be culpable only if it engages either in clear expression such as inducement or in affirmative acts."

Cox is appealing a Fourth Circuit decision that affirmed a Virginia federal jury's verdict in favor of Sony, Capitol Records LLC and other music companies, delivering a $1 billion award after finding Cox liable for contributory and vicarious copyright infringement. The Fourth Circuit affirmed the contributory infringement verdict, but reversed the jury's vicarious liability finding and ordered the district court to recalculate damages.

Cox's position is that ISPs should not be liable for merely providing a service, saying that does not indicate an intent to infringe.

Clement & Murphy PLLC partner Paul Clement, who argued on behalf of the music companies, said Cox's position would render the Digital Millennium Copyright Act's safe harbor provision "a dead letter." The DMCA's safe harbor protects ISPs from liability if they follow certain rules, including removing infringing content.

"If Cox is right on the law, then Cox could take tens of thousands of copyright notices and throw them in the trash, and they can have its employees say 'F the DMCA.' That is in fact what the record says, which is why they're asking you for an extreme rule," Clement said, referring to documents in the trial court record that the music companies argued showed Cox "was openly contemptuous of the statute."

The plaintiffs have accused Cox of putting profits over legal compliance by failing to disconnect repeat infringers from the internet.

Justice Sonia Sotomayor said she was "troubled" by the assertions that Cox "did nothing" to address allegations of infringement.

"In fact, counselor, your client's sort of laissez-faire attitude toward the respondents is probably what got the jury upset," Justice Sotomayor told Rosenkranz.

The attorney took exception to that description.

"The notion that Cox did nothing is absurd," Rosenkranz said, and he contended that the plaintiffs made that assertion for the first time when the case reached the high court. "First, Cox invested its own resources to create the first-of-its-kind anti-infringement program. There was no precedent for that. Second, under that program, Cox sent out hundreds of warnings a day."

The government also participated in the arguments, with Malcolm Stewart of the Office of the Solicitor General supporting Cox's position that merely providing a service does not indicate an intent to infringe.

"Both in copyright law and more generally, this form of secondary liability is reserved for persons who act for the purpose of facilitating violations of law," he said. "Because Cox simply provided the same generic internet services to infringers and noninfringers alike, there is no basis for inferring such a purpose."

Justice Samuel Alito questioned how ISPs could respond to allegations of infringement with accounts that serve thousands of people, including universities, where it would be challenging to identify infringers.

"Now, the university then has to try to determine which particular students are engaging in this activity," Justice Alito said. "And let's assume it can even do that, and then it knocks out a thousand students. And then another thousand students are going to pop up doing the same thing. I just don't see how it's workable at all."

Cox is represented by E. Joshua Rosenkranz, Christopher J. Cariello, Alexandra Bursak, Gavin McGimpsey, Edward Williams, Abigail Colella and Kamilyn Y. Choi of Orrick Herrington & Sutcliffe LLP and Roman Martinez, Sarang V. Damle and Brent T.F. Murphy of Latham & Watkins LLP.

The music publishers are represented by Paul D. Clement of Clement & Murphy PLLC, Matthew J. Oppenheim, Scott A. Zebrak and Jeffrey M. Gould of Oppenheim & Zebrak LLP and Catherine E. Stetson, Jo-Ann Tamila Sagar and Michael J. West of Hogan Lovells.

The government is represented by Malcolm Stewart of the Office of the Solicitor General.

The case is Cox Communications Inc. et al. v. Sony Music Entertainment et al., case number 24-171, in the Supreme Court of the United States.