This week marks the latest development in the Cox Communications, Inc., et al. v. Sony Music Entertainment case, with amicus briefs filed by eleven Sony supporters. These briefs argue generally that Cox should be held contributorily liable for copyright infringement by its users because its termination policy for alleged repeat infringers was inadequate. They generally call for a broad scope of ISP liability as a way to ease the burden of copyright enforcement online.
However, as Re:Create, EFF, ALA and ARL argued in an amicus brief in support of Cox in September, ISPs shouldn’t be held responsible for their customers’ infringing activities. The brief explained that copyright law doesn’t clearly define when someone can be liable for others’ actions, but using rules from patent law provides an approach that properly balances the interests of copyright holders with those of technology providers and their users. Moreover, holding ISPs liable could lead to innocent people losing internet access based on unfounded allegations, which would unfairly harm families, schools, and communities.
Below are additional resources on this issue and why Re:Create and its members support Cox in this landmark case, which could have profound effects on the internet and other technology services that Americans rely on every day to teach, learn, work, and connect:
- Sony Submits Brief in Cox v. Sony
- Everything You Need to Know About Cox v. Sony & What People Are Saying
- Brief of Amici Curiae Electronic Frontier Foundation, American Library Association, The Association of Research Libraries, and Re:Create in Support of Petitioners and Reversal
- Public Knowledge: Broadband Providers Are Not Copyright Cops: Why the Sony v. Cox Case Threatens Internet Users
- ARL: Library Copyright Alliance Asks Court to Reconsider Its Finding on Contributory Infringement in Sony v. Cox
- Comments on Cox Communications’ Merits Brief
To help sift through the wall of text in this intimidating docket, we’ve provided AI summaries (with a little human supervision and editing!) of today’s briefs in support of Sony below:
Brief of Amicus Curiae The Motion Picture Association, Inc. In Support of Respondents
Summary: Characterizing the internet as a potential “haven for mass piracy,” the MPA alleges that Cox seeks to narrow the standard for secondary liability to require a defendant’s intent to induce or encourage infringement, rather than what they say is the established rule of knowingly facilitating or materially contributing to it, without regard to intent. The MPA argues this alleged change would eliminate the “system of cooperation” between service providers and copyright owners. MPA equivocates between secondary liability rules and the DMCA’s “safe harbor” provisions despite Congress’s own disclaimer of any intent to influence secondary liability doctrines by creating the Section 512 safe harbors. Nevertheless, MPA says broad secondary liability rules are necessary alongside the Section 512 regime to give service providers an incentive to address repeat infringers. The MPA contends that Cox, having failed to implement a meaningful policy to address repeat infringers and thus forfeiting the DMCA safe harbor, should be held secondarily liable.
Summary: The brief centers on the music industry’s long reliance on secondary liability—the legal principle that holds intermediaries responsible for infringement enabled on their platform—as a critical enforcement tool dating back to early 20th-century “dance-hall” cases. The brief claims that the doctrine is essential because internet service providers (ISPs) like Cox are the “gatekeepers” who allegedly know the identity of the direct infringers, making them a more convenient target for copyright owners unwilling to pursue “countless anonymous individuals” engaged in actual infringement.
The music industry amici contend that the law has consistently applied secondary liability to entities that knowingly provide critical support for infringement, regardless of whether that entity is a physical venue or an ISP. Like the MPA, the music industry brief emphasizes that Cox disqualified itself from the DMCA’s safe harbor by refusing to adopt reasonable anti-piracy measures and by engaging in a “deliberate and reckless campaign” to ignore copyright law in the interest of preserving subscription revenue—actions that they say strongly support the jury’s finding of willful infringement.
Amicus brief of Bruce E. Boyden submitted.
Summary: Professor Boyden argues that the Supreme Court should affirm Cox’s liability by clarifying that contributory copyright infringement should be treated like civil aiding and abetting under tort law, rather than looking to patent law doctrines as the Supreme Court has done in past cases.
He asserts that this requires only knowledge of a user’s pattern of infringement (provided by reliable notices), not intent. Furthermore, he contends that continuing to provide internet service to known repeat infringers constitutes the necessary “substantial assistance” (or “material contribution”) needed for liability. Boyden concludes the jury had sufficient evidence to find Cox liable and the Court should affirm the ruling.
Amicus brief of The Copyright Alliance submitted.
Summary: The Copyright Alliance, a trade group that represents the major corporate copyright holders in the publishing, film, and music industries as well as individual creators, emphasizes the cultural and economic contributions of those industries and asserts that strong copyright enforcement mechanisms are necessary to ensure these industries can continue to thrive. Like the MPA, the Alliance asserts that a broad interpretation of contributory infringement is essential for combating digital piracy because suing individual infringers is impracticable. Also like the MPA, the Copyright Alliance argues that a broad contributory liability standard requiring only knowledge and material contribution is rooted in common law, was incorporated by Congress in the 1976 Copyright Act, and was affirmed by the Digital Millennium Copyright Act (DMCA), which provides safe harbor only if ISPs adopt and enforce a policy against repeat infringers. By failing to adhere to its own repeat infringer policy, Cox both forfeited the DMCA’s protection and was rightfully found liable for willfully facilitating massive infringement.
Summary: The brief on behalf of several large authors groups echoes the arguments of other amici that the doctrine of contributory infringement is vital for effective copyright enforcement because suing millions of anonymous online infringers directly is a “practical impossibility”. The brief contends that the jury properly found “material contribution” because Cox continued to provide its service to specific users with knowledge that infringement was “substantially certain” to recur, and its deliberate failure to terminate those accounts—driven by a desire to protect revenue—constitutes the “affirmative steps” and “culpable expression” required for liability. The brief also attempts to distinguish this case from criminal cases cited by Cox and its amici, including the Supreme Court’s recent decision in Twitter, Inc. v. Taamneh.
Amicus brief of The Association of Amicus Counsel submitted.
Summary: The somewhat mysterious and generically-named Association of Amicus Counsel seems to have entered the case primarily to prevent the outcome of this case from having any effect on what the group sees as the correct and well-functioning rules of secondary liability in patent law. Notwithstanding the Supreme Court’s endorsement of patent law rules of secondary liability as good models for copyright jurisprudence, the brief argues that patent and copyright differ so significantly that if the Supreme Court were to endorse Cox’s proposed interpretation of the proper scope of contributory copyright infringement, it should nevertheless disclaim any intent to announce a similar rule for contributory patent infringement.
Additional brief summaries will be added in the coming days.
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About Re:Create: Re:Create is a coalition comprised of a broad membership of think tanks, advocacy organizations, libraries, technology companies – large and small – that serves as the leading coalition united in the fight for a balanced copyright system that is pro-innovation, pro-creator, and pro-consumer. Not every member of the Re:Create Coalition necessarily agrees on every issue, but the views we express represent the consensus among the bulk of our membership.