In Cox v. Sony, the US Supreme Court granted certiorari and will hear oral arguments this term. Cox seeks to overturn a decision by the US Court of Appeals for the Fourth Circuit that affirmed a billion-dollar judgment against Cox after a jury concluded that Cox was liable for contributory copyright infringement based on its users’ direct copyright infringement.
The Fourth Circuit held that (1) an internet service provider (ISP) is liable for material contribution to copyright infringement when it knows its users are infringing[1] and does not terminate access; and (2) a contributory infringer’s mere knowledge of direct infringement can make its contributory infringement “willful,” entitling the infringed party to enlarged statutory penalties of up to $150,000 per violation (compared to a maximum of $30,000 if not willful). 17 U.S.C. 504(c). In so holding, the Fourth Circuit rejected the argument that the ISP must somehow affirmatively contribute to the infringement.
The Supreme Court received 21 amicus briefs in this case. Only one—filed by the American Intellectual Property Law Association (AIPLA)—favors Sony and the Fourth Circuit’s rule. The AIPLA’s brief argues that the mere knowledge standard strengthens copyright enforcement while affording courts flexibility to impose secondary liability based on the degree to which a defendant’s acts and omissions materially contributed to infringement by another. AIPLA insists that this will not necessarily expand liability for all ISPs but will appropriately punish platforms that fail to take affirmative steps to police users’ infringement, for example by terminating accounts when the ISP receives credible notice of infringement. The AIPLA also approves of findings of “willfulness” when an ISP knew of users’ infringement but took no action to stop it.
The remaining amici—tech companies, think tanks, civil society organizations, and the United States government—argue that a mere knowledge standard will expose ISPs to crippling liability. Across twenty separate briefs, they urge something akin to an affirmative contribution standard—holding platforms liable only when they know about infringement and affirmatively contribute to it. Amici point to recent Supreme Court and Ninth Circuit decisions consistent with this standard. See, e.g. Twitter, Inc. v. Taamneh, 598 U.S. 471, 493-506 (2023) (though defendants knew terrorists were using their online platform to recruit and fundraise, their failure to deactivate accounts did not amount to conscious and culpable conduct that justified aiding-and-abetting liability); Univ. City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963, 976 (9th Cir. 1981), rev’d, 464 U.S. 417 (1984) (“[t]he record establishes that appellees knew and expected that the Betamax’s major use would be to record copyrighted programs off-the-air” but that knowledge did not suffice for contributory infringement liability); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 923-33 (2005) (concluding that even though advertisements urged consumers to buy the Betamax to “record favorite shows” or “build a library” of recorded programs, Sony did not provide special aid to infringers that it did not provide other customers, so was not liable for contributory infringement).
While these amici offer slightly different reasons for the affirmative contribution standard, all urge that it upholds intellectual property rights while protecting free speech and access to the essentials of modern life provided by the internet. They warn that the mere knowledge rule would threaten universal internet access, as ISPs would face pressure to terminate large numbers of accounts, harming innocent users.
Regarding statutory damages, these amici contend that “willfulness” should require knowing or reckless disregard of the unlawfulness of the ISP’s own conduct, not mere knowledge of users’ infringement.
All briefing before the Supreme Court, including the amicus briefs discussed above, is available on the Supreme Court website.
Crowell has been closely monitoring this important development in US copyright law. We published a client alert when the Supreme Court granted certiorari and we will continue to monitor and provide updates as this case develops.
For further information, please contact:
Warrington Parker, Partner, Crowell & Moring
wparker@crowell.com
[1] The Fourth Circuit held that “Cox did not qualify for the [Digital Millenium Copyright Act] safe harbor because its repeat infringer policy as implemented was inadequate under the DMCA.” See BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 301–305 (4th Cir. 2018) (applying 17 U.S.C. 512).
