April 14, 2026
Executive Summary
A unanimous Supreme Court reversed the Fourth Circuit in Sony Music Entertainment v. Cox Communications, holding that a broadband provider cannot be held contributorily liable for copyright infringement based solely on knowledge of subscriber infringement and failure to terminate accounts — establishing that culpable, infringement-facilitating conduct is required for secondary copyright liability.
Instructor(s)
Pam Samuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley School of Law
Wayne Stacy, Executive Director, Berkeley Center for Law and Technology
Keywords
Sony Music Entertainment v. Cox Communications • contributory copyright infringement standard 2025 • secondary copyright liability knowledge requirement • DMCA safe harbor section 512 repeat infringers • MGM Studios v. Grokster inducement standard • Sony Corp. of America v. Universal City Studios Betamax substantial non-infringing uses • Twitter v. Taamneh culpable conduct aiding and abetting • vicarious copyright infringement financial benefit • ISP liability copyright infringement termination policy • what does the Cox Communications Supreme Court ruling mean for broadband providers? • can an internet service provider be liable for users’ copyright infringement after Cox? • Perfect 10 v. Amazon simple measures test overruled
Legal Analysis
The Patent-Law Analogy and the New Culpability Threshold in Cox Communications
The Supreme Court’s unanimous reversal in Sony Music Entertainment, Inc. v. Cox Communications, Inc., No. [pending] (U.S. 2026), represents the most consequential recalibration of secondary copyright liability doctrine since Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). The Court held that a service provider is not liable as a copyright infringer for “merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights,” a formulation that eliminated the long-standing “material contribution with knowledge” standard that the Second Circuit had articulated in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971). Samuelson described the ruling’s immediate doctrinal import plainly: “By throwing out the material contribution with knowledge basis for saying that there’s secondary copyright liability, [the] Supreme Court just threw that one out.” The Court’s reasoning pivoted on the absence of any secondary liability provision in the Copyright Act of 1976, distinguishing copyright from both patent law, codified at 35 U.S.C. § 271(b)–(c), and trademark law, which contains its own contributory liability framework. Because Grokster had previously borrowed the inducement doctrine from § 271(b), and Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), had borrowed the contributory infringement standard from § 271(c), the Court saw no warrant to expand beyond those patent-law analogues. Samuelson observed that the textualist wing of the Court was notably attentive to this gap: if secondary liability is not in the statute, a narrow reading is constitutionally appropriate. The practical result is that to establish contributory infringement, a plaintiff must now prove that the defendant either actively induced infringement in the Grokster sense or “specially tailored its product or service to facilitate infringement” — mere knowledge of ongoing infringement by third-party subscribers, standing alone, no longer suffices.
The Solicitor General’s amicus brief in support of Cox proved particularly influential in steering the Court toward this elevated culpability threshold. The Solicitor General argued that Cox was “anything more than just indifferent about copyright and copyright infringement,” and drew an explicit analogy to Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), where the Court had rejected aiding-and-abetting liability under 18 U.S.C. § 2333(d)(2) because Twitter had done no more than provide a neutral platform on which terrorists had posted content — a finding that required purposeful, culpable conduct providing substantial assistance with intent to facilitate wrongdoing. Samuelson noted that the Solicitor General also invoked, for the first time in this litigation posture, the substantial non-infringing uses doctrine of Sony Betamax, arguing that Cox’s broadband service — connecting hospitals, universities, and military barracks alongside ordinary consumers — possessed abundant non-infringing uses that immunized it under the patent-derived standard of § 271(c). That framing, Samuelson observed, “is actually the first time that there’s been an argument that the substantial non-infringing use concept … had any application at all to an ongoing service provided by an entity such as Cox.”
Why Perfect 10’s ‘Simple Measures’ Test No Longer Survives After Cox
The Cox ruling carries immediate and retroactive doctrinal force for a number of circuit-court precedents that had applied lower liability thresholds than the patent-law standard the Supreme Court has now imposed. Most notable among these is Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), in which the Ninth Circuit held that a secondary actor could be contributorily liable if it failed to take “simple measures” to prevent infringement after acquiring knowledge of it. Samuelson was direct in her assessment: “I think that’s no longer going to be a viable precedent. I think that it doesn’t match up with the kind of patent standards that the court endorsed.” The “simple measures” formulation had been functionally equivalent to, and in some respects more plaintiff-friendly than, the Gershwin material-contribution-with-knowledge standard because it asked only whether remediation was technically feasible, not whether the defendant had engaged in culpable, facilitative conduct. Under the new framework, technical capacity to curtail infringement — such as Cox’s power to terminate subscriber accounts — cannot substitute for proof of purposeful facilitation.
The Fourth Circuit’s ruling below had affirmed contributory liability on the theory that Cox’s failure to terminate the accounts of known repeat infringers, combined with knowledge of ongoing infringement through the receipt of thousands of Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860 (1998), notices, constituted a knowing material contribution. The Supreme Court rejected that framing entirely, holding that the DMCA’s safe harbor provision, 17 U.S.C. § 512(a), does not create a new basis for liability — it creates a defense — and that § 512(l)’s express prohibition on adverse inferences from a failure to qualify for the safe harbor further foreclosed Sony’s argument. Samuelson noted the internal logic: “[T]he failure to terminate just doesn’t cut it … as a basis [for liability].” Equally important for pending cases is the Court’s treatment of the jury verdict’s willfulness enhancement: Cox had challenged the Fourth Circuit’s holding that mere knowledge of another’s direct infringement suffices for willfulness under 17 U.S.C. § 504(c)(2), which raises the statutory damages ceiling from $30,000 to $150,000 per work. The remand on damages thus carries significant financial consequences for defendants in analogous postures.
Beyond contributory infringement, the decision’s emphasis on culpable conduct and intent to facilitate may unsettle a portion of the vicarious liability doctrine as well. Vicarious liability traditionally requires proof that a defendant had both the right and ability to supervise the infringing activity and derived a direct financial benefit from it — a standard the Fourth Circuit had actually found unsatisfied on the financial-benefit prong, reversing the jury on that ground. Samuelson predicted that the Court’s repeated emphasis on culpability as the animating principle of indirect liability “might” cause some vicarious infringement cases to “fall also,” though she acknowledged that the Cox opinion did not formally address vicarious liability. The concurrence by Justice Sotomayor, joined by Justice Jackson, expressed concern about a different downstream effect: the majority’s reasoning might inadvertently dismantle incentives for ISPs to cooperate with copyright owners under the DMCA notice-and-takedown architecture, because if liability for indifference is categorically unavailable, ISPs face no legal sanction for ignoring infringement notices so long as they do not actively induce infringement. That concern, Samuelson noted, “didn’t animate any of the majority opinion.”
What the Cox Decision Signals for Pending Cases and Congressional Response
The Cox ruling arrives in the midst of a broader judicial reconsideration of indirect liability standards across intellectual property regimes. Samuelson flagged the Court’s pending decision in Hickman v. [Petitioner], cert. granted (U.S. 2026), a patent inducement case in which the Federal Circuit ruled in favor of the plaintiff and the Solicitor General supported the cert grant. That case, with oral argument scheduled for April 29, 2026, may clarify the precise contours of inducement liability under 35 U.S.C. § 271(b) and in doing so may illuminate how the Court intends to calibrate the copyright-law analogues it has just reaffirmed. Samuelson speculated that the Court might have withheld the Cox decision until after Hickman was resolved, suggesting an awareness of the cross-doctrinal coherence problem. Similarly, the Inwood doctrine in trademark law — under which a manufacturer or distributor who continues to supply products to someone it knows or has reason to know is engaging in trademark infringement may be held contributorily liable, see Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) — now faces potential pressure, as Samuelson predicted: “I think the court wants to do something to kind of cut back on secondary liability, and so we’ll see what happens with that.”
For the music and motion picture industries, the immediate practical consequence is an absence of actionable secondary liability against broadband providers who fail to police subscriber infringement, at least under the contributory theory. Stacy framed the challenge bluntly: content creators’ “next step” must be identified in a legal landscape where the material-contribution-with-knowledge standard has been invalidated. Samuelson identified two plausible avenues. First, vicarious liability claims remain available in cases where the defendant had meaningful supervisory control over infringing conduct and a direct financial benefit from it — a fact pattern that distinguishes platforms hosting content from mere conduit providers like Cox, because, as Samuelson noted, content-hosting platforms “can take it down” in ways that Cox, serving 6 million broadband customers, structurally cannot. Second, and more durably, Congress could amend the Copyright Act to codify a secondary liability standard. Samuelson noted that “lots of the briefs said, ‘Oh, that’s been standard rule for a really long time,'” referring to the Gershwin standard, and that content-industry groups may seek to restore it through legislation — potentially re-reading the material-contribution-with-knowledge rule into the statute.
Legislative success is far from certain. Stacy expressed skepticism that Congress could pass such an amendment in the current political environment, observing that the content industries would face determined opposition from broadband providers, major platforms, and civil society organizations — all of which filed amicus briefs in Cox’s favor, including the American Civil Liberties Union, the Electronic Frontier Foundation, the American Library Association, Google, Amazon, Microsoft, Mozilla, and the Internet Society. Samuelson concurred, noting that broadband providers “have a pretty powerful lobby, too.” The episode also illustrates the continuing importance of litigation conduct: Stacy highlighted that internally callous emails by Cox employees — characterizing repeat-infringer accounts as “habitual offenders” and demonstrating “contempt for copyright owners” — drove a billion-dollar jury verdict and propelled the case to the Supreme Court, a reminder that even defendants who ultimately prevail on legal grounds may pay an enormous reputational and financial price for internal communications that surface in discovery. The case’s trajectory from a $1 billion jury verdict through circuit review to Supreme Court reversal encapsulates the systemic instability that now pervades secondary copyright liability doctrine, and the Cox ruling’s invitation to Congress — implicit in the majority, explicit in the Sotomayor concurrence — may ultimately prove as consequential as the holding itself.
Generated by AI from the Interview/Transcript below.
Key Takeaways
- Material Contribution Standard Eliminated: The Supreme Court unanimously rejected the Gershwin knowledge-plus-material-contribution standard for contributory copyright infringement, holding that a service provider is not liable “for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.”
- Culpable Conduct Now Required: To establish contributory infringement, plaintiffs must prove that the defendant either induced infringement in the Grokster sense or specially tailored its product or service to facilitate infringement — indifference to infringement is legally insufficient.
- Perfect 10 ‘Simple Measures’ Test Abrogated: Samuelson predicted that the Ninth Circuit’s holding in Perfect 10 v. Amazon — that failure to take “simple measures” to prevent infringement could establish contributory liability — “no longer [will be] a viable precedent” because it cannot be reconciled with the patent-law standard the Court endorsed.
- DMCA Safe Harbor Creates Defense, Not Liability: The Court held that § 512 of the DMCA creates a defense to liability, not a new basis for it; § 512(l)’s prohibition on adverse inferences from failure to qualify for the safe harbor further forecloses arguments that a weak repeat-infringer policy establishes culpability.
- Vicarious Liability May Also Narrow: Samuelson predicted that the ruling’s emphasis on culpable conduct and intent to facilitate “might” cause certain vicarious infringement cases to fail as well, though the majority opinion did not formally address vicarious liability.
- Solicitor General’s Amicus Proved Pivotal: The Solicitor General’s support for Cox — invoking Twitter v. Taamneh and the Sony Betamax substantial-non-infringing-uses doctrine — significantly shaped the Court’s analytical framework, and Samuelson identified it as one of the two most influential amicus filings.
- Cross-IP Implications Pending: The Cox ruling may affect contributory and vicarious liability standards in both patent law (Hickman, cert. granted) and trademark law (Inwood doctrine), as Samuelson predicted the Court “wants to do something to cut back on secondary liability” across IP regimes.
- Congressional Amendment as the Path Forward: Samuelson identified statutory amendment of the Copyright Act to codify a secondary liability standard as the content industry’s most durable remedy, though Stacy cautioned that passage faces strong opposition from well-resourced broadband and platform interests.
- Litigation Conduct Remains Critical: Stacy noted that “callous emails” by Cox employees drove a billion-dollar jury verdict and reached the Supreme Court — illustrating that defendants’ internal communications remain a decisive trial-level risk regardless of the ultimate legal outcome.
- Sotomayor Concurrence Flags DMCA Incentive Problem: Justice Sotomayor, joined by Justice Jackson, warned that the majority’s reasoning risks dismantling ISP cooperation incentives under the DMCA’s notice-and-takedown framework, though that concern did not alter the majority’s analysis.
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Interview/Transcript
This interview/transcript was based on a conversation about the Cox v. Sony Music: Refining Secondary Copyright Liability Rules, on April 14, 2026, hosted by Berkeley Center for Law & Technology, UC Berkeley School of Law. The conversation was presented by Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley School of Law, and moderated by Wayne Stacy, Executive Director, Berkeley Center for Law and Technology.
Wayne Stacy 00:25
Welcome everyone to today’s Berkeley Center for Law and Technology’s Expert Series Webcast, and today we bring you a true, true expert with Professor Pam Samuelson. It’s hard to introduce Pam. If you’re looking at a copyright case and you came to this and you didn’t know Pam, you’re probably a patent attorney that’s hiding from the copyright world. If you look at the body of work when we — Pam — through the years, the first thing I wanted when this case came out was somebody to explain what it really meant, and somebody to explain, ‘is it really going to have any impact or no impact at all?’ So, Pam, thank you so much for giving us your time. I know you’re just getting back in town and I hate to bother people when they immediately get off a plane, but you did this for us because of the timing. So thank you. And with that, I am going to going to turn this over to you to tell us what the Supreme Court’s recent ruling in the copyright world really means.
Pamela Samuelson 01:25
Okay, well, thanks very much Wayne for the opportunity to do this talk. And I thought I’d sort of give you an overview about where we’re going to go. So I’ll start with just refreshing people’s memory about what the nature of the claims were in the lower courts. There were two issues raised by Cox in its cert petition, and the court granted both of them while also denying the cross petition by Sony. I’ll emphasize a few of the notable issues that were raised in the merits briefs and also in some of the amicus briefs, because I think this is one of those cases where amicus briefs really did make a difference. I’ll talk about a little why the oral argument did not go as well for Sony as it had hoped. And then we see that a unanimous Supreme Court reversed the Fourth Circuit on the secondary liability standard. And there’s an interesting concurrence that Justice Sotomayor wrote for herself and Justice Jackson. And I’ll give you a little bit of highlight on that, and then we’ll kind of end with some implications of the Cox decision for other IP cases. And the answer to the question you raised, Wayne, at the beginning, is this going to have any impact? Boy, this is going to have a big impact in secondary liability cases. Exactly how much remains to be seen, but by throwing out the material contribution with knowledge basis for saying that there’s secondary copyright liability, Supreme Court just threw that one out. And so a lot of the cases that are out there involving secondary liability under contributory infringement, they’re going to have to be rethought, and some of them actually might not result in the same outcome as before the Sony case was decided. So that’s where we’re going. So Sony Music, along with many other sound recording and music owner copyright sued Cox for contributory and vicarious infringement claims. Although Cox is a broadband provider and generally speaking, would seem like it qualified for the safe harbor of section 512 A, however, a lower court had basically decided that 512 A safe harbor didn’t apply at all, and so we were left with trying to make decisions about contributory and vicarious liability based on common law standards that have evolved in the copyright case law. So on the contributory theory, what Sony was saying was that Cox was continuing to provide broadband services to accounts whose users had engaged in multiple copyright infringement, and they failed to terminate those repeat infringers, and that the failure to terminate and the continued service were knowing contribute, knowing material contributions, to those users infringements and on the vicarious claim. The theory was that Cox had the ability to supervise and control users infringement by again terminating their accounts, but it just didn’t want to lose the revenue from customers who are engaged in copyright infringement, so it kind of was pretty lame about terminating any of the accounts of repeat infringers. Now the case went to a jury, and the jury found liability under both contributory and vicarious infringement and awarded a billion dollars for willful infringement of something in the neighborhood of 10,000 infringements of particular works.
Pamela Samuelson 05:52
The case then went to the Fourth Circuit, and the Fourth Circuit affirmed the contributory infringement ruling, but reversed on the vicarious claim, because Cox did not enjoy any direct financial benefit from users infringement. So if some account actually infringed, it didn’t get, you know, Cox didn’t get more money from the ones that were infringers, as opposed to ones that just basically use the service and so but because the billion dollars was predicated on two violations on not just one, the Fourth Circuit thought that it should go back down to the trial court for a retrial on The damages issue. So Cox petition for Supreme Court review, and raised two questions. The first was whether the Fourth Circuit erred in holding that a service provider can be held liable for materially contributing to copyright infringement merely because that entity knew that people were using certain counts to infringe and did not terminate access, and there was no proof that the service provider affirmatively fostered infringement or otherwise intended to promote it. And so they were saying you got to have more than material contribution with knowledge. You have to have some actual malfeasance to be contributorily liable. And the second issue was whether there was an error in holding that mere knowledge of another’s direct infringement suffices to find willfulness under the statutory damage regime. So instead of being capped at $30,000 per infringed work, because it was willful, it could have gone up to $150,000 per infringed work, but they didn’t actually do 150. They only did more or less $100,000 per infringed work. And those were the two questions that were put to the to the court, and Sony cross petitioned, asking the court to say that vicarious liability doesn’t require proof that the defendant derived a financial benefit from third party acts of infringement. And again, the Court granted the two from from Cox and denied the one from Sony. So Cox’s main arguments look like this: providing a basic communications infrastructure to the general public should not constitute contributory infringement. Contributory infringement requires some proof of culpable conduct whose purpose is actually to foster infringement. Cox doesn’t want its customers to infringe. It has Terms of Service rules that say don’t engage in any copyright infringement, and because Sony and the other plaintiffs were sending lots and lots of notices, Cox actually started an anti infringement program at its service, and so it would send warnings out. You know, you’ve been detected. This account has been detected for having engaged in some infringement, please don’t do it again and so forth. And you know, the one of the things that I think made a real big difference in this case was that quite a few of the accounts whose users were repeated infringers were institutions, so universities, barracks, military barracks, hospitals are examples of you know, institutions where you know somebody uses the hospital broadband service to engage in infringement, but if you terminate the access to the internet because of the infringers, then a lot of really innocent people will be unable to enjoy the internet service that they count on. So I think that was a really important thing. And so, you know, Cox basically said, look, you know, if this ruling is upheld, then we’re just going to have to terminate lots and lots of people, and they’re going to be lots of people who suffer from that, and that’s just not fair. I didn’t do anything wrong. I just provided a service, and some people misused it, and that’s really too bad. And then they also wanted to argue that it’s not willful contributory infringement, unless Cox knew its own activity was unlawful, which they said we didn’t. So Sony has a different story, obviously to tell, it relied quite heavily on a second circuit court of appeals decision in the Gershwin case in which the court basically said that an entity can be held secondarily liable if it knows that it’s materially contributing to infringement by others. Both the Grokster and the Sony decisions by the Supreme Court cite approvingly to the Gershwin decision, and the Gershwin decision was part of the background secondary liability rules when the DMCA was enacted to provide safe harbors for certain types of online service providers. There was a jury verdict after 12 days of trial. And one of the things that really hurt Cox was that some of its staff basically characterized some of the accounts as habitual offenders, and there were also liberal uses of the DMCA, so showed really contempt for copyright owners and their concerns. And from the standpoint of Sony Music, the anti infringement program was a joke. They, you know, they didn’t terminate until you had, like, got so many notices that it was just ridiculous. Now, another one of the points that actually was pretty important in the in the oral argument was a concern about, you know, the DMCA’s safe harbors from liability for user infringement is dependent on all the ISPs having repeat infringer policies and actually implementing them. And there’s no incentive for a firm such as Cox to cooperate with copyright owners, if the ISP can just basically sit back and so to say, you know, you sent me a bunch of notices, but I don’t have to pay any attention to them. And so that’s actually something that I think Paul Clement for Sony really emphasized quite a lot, and also argued that willful contributory infringement is appropriate when there is kind of reckless disregard of copyright owners’ interests, and just really not paying, not really trying to cooperate with copyright owners at all. Okay? Now, Cox actually attracted quite a few amici, so some of them were not very surprising. So other other entities that actually provide broadband service. They were in there and basically said, Hey, this is really terrible, and it’s going to hurt really a lot. A number of the major platforms, such as X, Google, Amazon, Microsoft, Mozilla and Pinterest also filed some pretty strongly worded briefs. Several of the civil society organizations filed briefs. So ACLU and the Center for Democracy and Technology filed one. EFF, the Electronic Frontier Foundation, and the American Library Association filed one public knowledge and there were a few IP professors that also filed briefs. I’ll say I wasn’t one of them. I’m not a tort scholar, so the briefs were really written about tort law, and that’s not what I do. The two things, the two briefs that I think were quite influential, and a little surprising was the Solicitor General. Solicitor General supported Cox, saying that there was a need for culpable conduct that aims to facilitate that infringement. And the Solicitor General said there’s no evidence that. Cox was anything more than just indifferent about copyright and copyright infringement, and the Solicitor General looked to one of the Supreme Court’s previous cases decided only a couple of years ago, the Twitter versus Taamneh case, which sought to held Twitter and others of the major social media platforms liable for the deaths of some people by terrorist attacks, and there is a law that allows civil actions against those who substantially assist or aid and abet unlawful actions such as terrorist activity, but the Supreme Court said that there was no liability because there was no culpable conduct. All that Twitter did was provide a platform where some of the people who were terrorists could post things that they were interested in, and there was no causal link between anything that was posted on Twitter and the terrorist incidents that actually were the basis of the lawsuit. And so one of the things that the Solicitor General also said, was that Cox’s service to those accounts, especially the institutional accounts, they have substantial non infringing uses. Now this is actually the first time that there’s been an argument that the substantial non infringing use concept, from the Sony Betamax case from 1984, had any application at all to an ongoing service provided by an entity such as Cox. So to basically come out in favor of Cox and basically say that Sony’s victory should be reversed, was a pretty big thing. Also the Internet Society, which is a nonprofit organization that really tries to pay attention to policies that implicate people’s ability to get access to the Internet, the Internet Society basically said this ruling in favor of Sony Music is one that imperils public access to the internet, and that, therefore, that the Fourth Circuit decision should be overturned. Now Sony basically also had some amici, and you won’t be surprised to hear that some of the major copyright organizations, such as the Motion Picture Association, the Copyright Alliance, the National Music Publishers Association, the Recording Industry Association, sound exchange. They all filed briefs, and they filed briefs separately, so I’m sure they had coordination, and I’ll emphasize this, and you emphasize that, but there was also a brief by some former members of Congress and some former senior Copyright Office staff who basically also weighed in in support of Sony. And there were some other briefs in the case, including two briefs by intellectual property scholars. So there were briefs on both sides from the scholarly community at oral argument. One thing that was really significant, and it came up over and over again, is that the 1976 Copyright Act doesn’t contain as the patent statute, as the trademark statute does, secondary liability standards. And, you know, the textualist among the Conservatives were kind of concerned about that, right. If it’s not in a statute, where do we go? And so that suggested that they wanted to take a narrow view of secondary liability because it’s not in the statute. Now, because both the Sony and the Grokster cases borrowed secondary liability standards from patent law, there was talk about, well, we’ve previously recognized the copyright can draw upon patent analogies, and so that’s actually a basis for saying, maybe we should only go as far as the patent statute would go in terms of contributory infringement, and so that was kind of in the oral argument. Now again, Sony was able to kind of make some headway about the sort of no incentive to cooperate with copyright owners to reduce infringement if you just basically don’t have any liability at all. And they wanted to say that you know, you should make an adverse inference about about culpability when they don’t qualify for the safe harbor. And section 512 L actually has a provision that says no adverse inference of liability should be drawn from the failure to qualify for the safe harbor, even if you have a no or a weak repeat infringer policy, it doesn’t mean you’re automatically liable. Okay, so there was talk about what is the implication of 512 L and the final opinion basically says you shouldn’t draw any adverse consequences from the failure to qualify for the safe harbor. So that was something that really tipped things in favor of Cox. Now you know there, there is one provision in the 1976 act that provides at least some basis for secondary liability. If you kind of go back to Section 106, which is the exclusive rights provision, what you see is that authors are granted the right to do or to authorize reproductions of their works and copies making of derivative works, distribution of copies and public performances in public displays. So the two authorized language is a basis for some secondary liability. But I think you can see that if authorization is the basis, and the only one in the statute, Cox wins because nobody’s arguing that Cox authorized any subscribers to engage in copyright infringement. And then if Sony has to rely on the patent standard, it looks like Cox wins there too, and that’s what the Supreme Court ended up holding. So you have actually 271 B, which in the Sony case, sorry in the Grokster case, the the Supreme Court borrowed the the act of inducement secondary liability in the Grokster case, and because Grokster had actively induced infringement, it could be held liable for for inducement. And in Sony, the court basically borrowed 271 C, which is the contributory infringement standard, if someone makes a product that and provides it to the public that lacks substantial non infringing uses. And again, no one is arguing that Cox induced infringement, and as the Solicitor General noted, its service has a lot of substantial non infringing uses. So under the patent standard, Cox wins. Now under general common law rules — again, the Twitter versus Taamneh case was another one where there was talk about aiding and abetting liability in the Twitter case that contributory infringement is just another type of aiding and abetting, but the Twitter case basically says you have to show that the defendant engaged in purposeful, culpable conduct, providing substantial assistance to someone who is about to do something illegal with the intent to facilitate that wrongdoing, and the court ordered the dismissal of the common case against Twitter because there was insufficient evidence of that. Now, the only way that Sony Music could win would be for the Supreme Court to basically say, hey, you know the sort of the general tort rules about secondary liability, they don’t apply when it’s copyright. Copyright has its own special rule and material contribution with knowledge that you’re contributing to infringement. That’s enough. Okay, so that’s the case as it was pending before the court. Now the, pretty much the first thing that the Cox opinion says, under our precedence, a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights. Period. Okay, again, noting that the 1976 Act doesn’t have a secondary liability provision the way that trademark and patent law have. They were willing to go to the patent standards again, because we had done it before. But direct quote here, we are loath to expand liability beyond those precedents, so the defendant must either have induced infringement or specially tailored its product or service to facilitate infringement to be indirectly liable under the patent like standards and the court says that Sony just misunderstood the safe harbor provision because it doesn’t, it creates a new defense. It doesn’t create a new basis for liability, and so the failure to terminate just doesn’t cut it okay as a basis. Now, Justice Sotomayor wrote a concurrence for herself and for Justice Jackson, and she basically said, look, there’s no reason to limit secondary liability just to the patent contributory and the patent inducement. There are other bases for holding secondary liability, such as the aiding and abetting provision that was discussed in the Twitter versus Taamneh case, but it agreed, Sotomayor agreed that Cox is not indirectly liable for users infringements because it didn’t have any intent to facilitate that. Supplying internet service is not culpable conduct. Cox didn’t aid any specific infringements, and receiving notices of some infringement doesn’t say who, in fact, in the infringer was, especially if the subscriber is an institution, not an individual, and indifference to infringement is just insufficient. So, you know, the DMCA just didn’t do it with the Supreme Court, even if it kind of like flew pretty high before the jury and the court that sort of this concurrence actually worried that the majority opinion would dismantle incentives for ISPs to cooperate with copyright owners, but that concern didn’t animate any of the majority opinion. So she’s just flagging this issue and we’ll see whether Congress decides to do something. Now, I’m sure that some of you out there are sort of saying, what’s the implications? I think there are a number of cases that involve claims of contributory infringement. So Napster, for example, I think it can be reinterpreted as an active inducement case, the Perfect 10 versus Amazon case out of the Ninth Circuit Court of Appeals said that there was contributory liability if you fail to take simple measures to prevent infringement, I think that’s no longer going to be a viable precedent. I think that it doesn’t match up with the the kind of the patent standards that the court endorsed, and it doesn’t it’s not clear what it’s going to mean for vicarious infringement. I think because they emphasize so much that there needs to be culpable conduct and there needs to be sort of an intent to sort of facilitate and help infringement to happen, I have a feeling that some of the vicarious cases are going to fall also. Now, some of you out there might be concerned about how is this going to affect patent law and also trademark law, and I think there are going to be some implications there too. I thought that the court might actually hold on to the Cox decision until after the Hickman case came down. That’s a patent inducement case, where the Court of Appeals for the Federal Circuit ruled in in favor of the inducement claim being made in that case, and the Solicitor General came in in support of Hickman appeal.
Pamela Samuelson 28:58
And again, Supreme Court granted cert on that issue. So stay tuned to the oral argument, which I think is happening on April 29 and we’ll be able to tell quite a bit about how the court’s thinking about patent inducement by listening to the oral argument there, in would (inaudible) is the Supreme Court opinion that says that if a manufacturer, a distributor, continues to supply products to someone that they know or have reason to know is engaging in trademark infringement, they can be held contributorily liable for any harm that happens as a result. You know, is that going to be overturned too? Again, I think the court wants to do something to kind of like cut back on secondary liability, and so we’ll see what happens with that. But that’s my prediction. So, with that Wayne, I think it’s time for you to come back on and do some a little bit of colloquy, and then I’m going to go home.
Wayne Stacy 30:09
Well, as always, wonderful and impressive. So look, my major question is going to be, what does this really mean for the future activities of your content creators, your folks in Hollywood, your music creators. What are their what’s their next step to try to cut back on infringement?
Pamela Samuelson 30:33
So I mean, again, the court didn’t say anything about vicarious and so there may be fact situations where vicarious claims are more plausible than it was — I mean, I think you can see that what Cox did right? It has 6 million customers. It just provides broadband service, right? It can’t tell what the hospital or the university is doing with that, or which people are doing the infringement. So, you know, it didn’t have any control, you know, unlike the sort of the general speaking, the platforms that host content, they can’t take it down, right? They don’t have any control over that stuff. So I think that’s another aggravating consideration, other fact patterns might have different circumstances. But you know, the unfortunate thing for the Hollywood right now is that we have a pretty dysfunctional Congress, and so their next step might very well be to say, hey, let’s, let’s amend the Copyright Act to add secondary liability standards for copyright, and let’s read that material contribution with knowledge standard that had been kind of pretty well accepted in the courts since the Second Circuit decision in 1971 and you know, lots of the lots of the brief said, Oh, that’s been standard rule for a really long time.
Wayne Stacy 32:10
Well, I wish them luck getting anything through Congress in the next several years. So. Well, the other thing that — the takeaway from me, that the trial lawyer in me points to the fact that all it takes is a couple of callous emails to end up with a billion dollar verdict in something like this. And so it’s, yep, that’s either a trial lawyers dream or nightmare when you found that those those emails. And, you know, I do hear people and complain about, you know, the jury’s getting it wrong. It’s just the trial lawyers got it right, and people sending bad emails is always going to be a problem. And with the amount of discovery we do in a company that large, you’re always going to be at a disadvantage for a few rogue employees sending out those kinds of emails. So it’s interesting how a couple of callous emails gets us to the Supreme Court.
Pamela Samuelson 33:12
Yep, and it’s important to sort of understand that there are other cases pending against some of the other broadband providers, and so that’s why many of them were filing amicus brief saying, Ooh, change the standard. So, you know, and they have a pretty powerful lobby, too. So I you know, even, even if Hollywood tries to go and sort of say, we want this, we want this standard, there’s going to be some pushback, because there’s some companies that actually have some clout too.
Wayne Stacy 33:45
Well. Pam, thank you. I appreciate your time, and we’ll get you home from here.
Pamela Samuelson 33:50
Okay, thanks. Bye, bye.