Amici Have Their Say in SCOTUS Case on ISP Liability

Late last week, 18 amicus briefs were filed in Cox Communications, Inc. v. Sony Music Entertainment, the majority supporting the petitioners, Cox. The American Intellectual Property Law Association (AIPLA) was the only amicus to recommend affirmance of the U.S. Court of Appeals for the Fourth Circuit’s 2024 ruling in favor of Sony.

Music publishers including Sony, Arista Records, Warner Music and Universal Music Group filed copyright claims against Cox in July 2018, alleging that Cox was liable for the infringement of 10,017 musical works that were illegally distributed by the ISP’s subscribers. A 2020 jury verdict found Cox liable for both vicarious and contributory infringement, leading to a $1 billion damages verdict against Cox after damages were increased for the jury’s willfulness finding.

In February 2024, the U.S. Court of Appeals for the Fourth Circuit ruled on Cox’s appeal, affirming the willful contributory infringement finding but remanding for a new trial on damages after overturning the vicarious liability finding for lack of Cox’s profit directly attributable to its subscribers’ acts of infringements.

Cox petitioned the Supreme Court in August 2024 asking whether the Fourth Circuit erred in finding that Cox materially contributed to infringement merely because it did not terminate Internet access to subscribers who were alleged to have committed infringement without proof. The petition also questions whether mere knowledge of infringement suffices to find willfulness under 17 U.S.C. § 504(c).

The petition was granted in June and Cox filed its opening brief with the Court on August 29, arguing that an ISP “does not materially contribute to its users’ copyright infringement just by providing communications infrastructure to the general public.” Cox relied on cases such as Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., and Twitter, Inc. v. Taamneh, noting that both decisions emphasized the need for an affirmative act taken with the intent of facilitating wrongdoing.

The Outliers

Three briefs took a decidedly different approach to their arguments than the rest.

Brief of a Professor of Patent Law: Supporting Neither Party

In a brief filed by Charles Duan, Assistant Professor of patent law at the American University Washington College of Law, in support of neither party, Duan urged the Court to view the case alongside the parallel doctrine of inducement of patent infringement, which shares the “material contribution” test at issue in the Cox case. According to Duan, patent law can guide the Court’s application of the test to copyright law because “patent law’s material-contribution analogue has long required a specific, unambiguous, affirmative act” that is equally appropriate in the copyright context. While patent inducement has been muddled by the U.S. Court of Appeals for the Federal Circuit (CAFC), the Supreme Court could take a step toward fixing it via both the Cox case and by granting the pending petition in Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. There, the Court most recently invited the Solicitor General of the United States to weigh in on whether the CAFC was correct in reversing a district court’s grant of Hikma Pharmaceuticals’ motion to dismiss Amarin Pharma, Inc.’s complaint against it for induced infringement last June. The CAFC said that Amarin’s allegations concerning Hikma’s “skinny” label, in combination with Hikma’s public statements and marketing materials, “at least plausibly state a claim for induced infringement.” Duan said the CAFC’s decision in Amarin “has invited harms to competition, consumers, and governance,” and that “[g]iven the close linkage between patent and copyright law, such harms could similarly arise unless copyright law’s material-contribution test is further clarified and tailored.”

AIPLA: Suggesting Affirmance

In another petition that went against the grain, the American Intellectual Property Law Association (AIPLA) recommended the Court affirm the Fourth Circuit’s decision. The brief explained that decisions on secondary liability are made on a case-by-case basis and the material contribution prong of contributory liability is meant to be provide flexibility to courts. “The elimination of this material contribution prong would mean that parties could recklessly disregard actual knowledge of repeat infringing activity they are in the best position to prevent, reaping profits to the detriment of copyright holders,” said the AIPLA brief.

AIPLA added that the Fourth Circuit was also correct in finding Cox’s infringement was willful based on knowledge of its subscribers’ infringement. “The instruction was not improper as it enabled the jury to consider whether continuing to provide services to subscribers Cox knew were repeat infringers constituted willful infringement,” the brief said.

Brief of Christopher Cotropia and James Gibson: Supporting Reversal on Question One

Christopher Cotropia, the David Weaver Research Professor of Law at The George Washington University Law School, and James Gibson, the Sesquicentennial Professor of Law at the University of Richmond School of Law and Co-Director of the School’s Intellectual Property Institute, filed a brief recommending the Court reverse the Fourth Circuit’s decision on question one, regarding Cox’s material contribution to infringement. Cotropia and Gibson’s brief was the only one to focus primarily on Cox’s role as a “conduit,” which they said the Fourth Circuit failed to recognize. Conduits “merely transmit data between endpoints; unlike content-hosting platforms like YouTube or search engines like Google, conduits do not store, curate, or control user content.”  The Fourth Circuit’s decision thus “collapsed the crucial legal distinction between conduits and hosts, extending contributory liability into an area where no court or legislature has ever placed it.” Furthermore, the Fourth Circuit erroneously conflated certain requirements of the Digital Millennium Copyright Act’s (DMCA’s) safe harbors with the elements of contributory liability, said the brief. “By treating Cox’s alleged failure to meet DMCA conditions—such as terminating repeat infringers—as substantive evidence of contributory infringement, the Fourth Circuit improperly converted a limitation on statutory immunity into a standard for fault,” the professors wrote. The brief ultimately argues that “the Fourth Circuit’s approach risks destabilizing copyright law by vastly expanding secondary liability without clear doctrinal or practical limits.”

The remaining briefs filed thus far supported either Cox or reversal. Here are some excerpts from a few of them:

Brief of the United States: Supporting Cox

“In this case, the evidence demonstrated at most that Cox was indifferent to its subscribers’ infringement, not that Cox intended to participate in that infringement or wished to bring it about. The court of appeals’ judgment upholding Cox’s liability therefore should be reversed.”

“The instruction here…permitted enhanced damages based on Cox’s knowledge of its customers’ unlawful conduct, even if Cox reasonably and in good faith believed that its own continued provision of internet services was lawful. That instruction is incompatible with the ordinary understanding of willfulness, and it risks making enhanced damages the norm in contributory-copyright infringement suits.”

EFF, American Library Association, Association of Research Libraries, RE:Create: Supporting Cox and Reversal

“Adopting Plaintiffs’ expansive view of copyright contributory liability would likely cause ISPs to terminate their customers’ internet access upon the flimsiest of accusations—especially since ISPs would face billion-dollar statutory damages awards if they didn’t do so.”

X Corp – Supporting Reversal

“[T]he Fourth Circuit’s expansion of secondary liability to include merely ‘supplying a product with knowledge that the recipient will use it to infringe copyrights,’… is an incorrect application of a doctrine that should be ‘cabin[ed]’ to ‘cases of truly culpable conduct.’”

Google, Amazon, Microsoft, Mozilla, Pinterest – Supporting Cox

“The Fourth Circuit’s overbroad standard for contributory infringement liability, if permitted to stand, will open the door to illegitimate lawsuits—like the claim here—that are based solely on providers’ failure to act. Such suits will significantly diminish the vitality of the internet economy….

First, the lower court upheld a jury finding that based willfulness on petitioners’ knowledge of its customers’ infringing activity, not on petitioners’ own mental state regarding their own violation of the copyright law. That was plainly wrong: whether an actor’s conduct is ‘willful’ turns on its own mental state, not the mental state of others.

Second, the Fourth Circuit erred by asserting that enhanced damages are available if the contributory infringer acts recklessly. What is required is proof that the defendant knew that it was committing a copyright violation.”

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