Amicus Curiae Brief — Cox Communications, Inc., et al., Petitioners v. Sony Music Entertainment, et al.

Supreme Court briefSep 5, 2025

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No. 24-171

In the Supreme Court of the United States

——————

COX COMMUNICATIONS, INC., ET AL.,

Petitioners,

SONY MUSIC ENTERTAINMENT, ET AL.,

——————

Respondents.

On Writ of Certiorari

to the United States Courts of Appeals

for the Fourth Circuit

——————

BRIEF OF X CORP. AS AMICUS CURIAE

IN SUPPORT OF REVERSAL

——————

ANDREW H. SCHAPIRO

MOON HEE LEE

QUINN EMANUEL URQUHART Counsel of Record

WILLIAM F. PATRY

& SULLIVAN, LLP

JESSICA A. ROSE

865 S. Figueroa St.

QUINN EMANUEL URQUHART

10th Floor

& SULLIVAN, LLP

Los Angeles, CA 90017

295 5th Avenue, 9th Floor

New York, NY 10016

(212) 849-7000

andrewschapiro@

quinnemanuel.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT.....................................4

ARGUMENT ...............................................................5

II.

THE DECISION BELOW

IMPERMISSIBLY EXPANDS

CONTRIBUTORY LIABILITY FOR

BEYOND THE LIMITS SET FORTH

IN TAAMNEH ..................................................5

Taamneh Confirmed that

Contributory Liability Must Be

Based on Culpable Participation

in Misconduct. ........................................5

Taamneh Is Consistent with

Sony and Grokster. ..............................13

THE COURT SHOULD CLARIFY

THAT TAAMNEH APPLIES TO

Clarification Is Needed to

Address Lower Courts’

Confusion. ............................................20

Clarification Is Needed to

Balance Protection with Free

Speech and Innovation. .......................22

CONCLUSION ..........................................................25

TABLE OF AUTHORITIES

Page(s)

Cases

In re Aimster Copyright Litig.,

334 F.3d 643 (7th Cir. 2003)..................................7

Concord Music Grp., Inc. v. X Corp.,

2024 WL 945325 (M.D. Tenn. Mar.

5, 2024) ...........................................................16, 19

Eldred v. Ashcroft,

537 U.S. 186 (2003)..........................................5, 23

Fortnightly Corp. v. United Artists Tel.,

Inc.,

392 U.S. 390 (1968)..............................................13

Gershwin Pub. Corp. v. Columbia

Artists Mgmt., Inc.,

443 F.2d 1159 (2d Cir. 1971) .............................6, 7

Golan v. Holder,

565 U.S. 302 (2012)..............................................23

Google LLC v. Oracle Am., Inc.,

593 U.S. 1 (2021)....................................................5

Kalem Co. v. Harper Bros.,

222 U.S. 55 (1911)..................................................7

Landy v. Fed. Deposit Ins. Corp.,

486 F.2d 139 (3d. Cir. 1973) ................................13

iii

Metro-Goldwyn-Mayer Studios, Inc. v.

Grokster, Ltd.,

545 U.S. 913 (2005). 4, 7, 14, 15, 16, 17, 18, 19, 20,

N.Y. Times Co. v. Microsoft Corp.,

2025 WL 1009179 (S.D.N.Y. Apr. 4,

2025) .....................................................................21

Nye & Nissen v. United States,

336 U.S. 613 (1949)................................................9

Perfect 10, Inc. v. Amazon.com, Inc.,

508 F.3d 1146 (9th Cir. 2007)........................20, 21

Religious Tech. Ctr. v. Netcom On-Line

Comm. Servs., Inc.,

907 F. Supp. 1361 (N.D. Cal. 1995).....................21

Screen Gems-Columbia Music, Inc. v.

Mark-Fi Records, Inc.,

256 F. Supp. 399 (S.D.N.Y. 1966) .......................12

Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos,

605 U.S. 280 (2025)................................................9

Sony Corp. of Am. v. Univ. City Studios,

Inc.,

464 U.S. 417 (1984)................ 4, 6, 7, 13, 14, 15, 24

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023). 3, 4, 7, 8, 9, 10, 11, 12, 13, 17,

18, 19, 20, 22

Univ. City Studios, Inc. v. Sony Corp. of

Am.,

659 F.2d 963 (9th Cir. 1981), rev’d,

464 U.S. 417 (1984)........................................14, 18

Statutes

17 U.S.C. § 501(a)-(b) ..................................................6

17 U.S.C. § 106 ............................................................6

18 U.S.C. § 2333(d)......................................................7

Other Authorities

Bruce E. Boyden, The Persistence of

Legal Error, Marquette Law School

Faculty Blog, February 15, 2011,

available at:

https://law.marquette.edu/facultyblo

g/2011/02/the-persistence-of-legalerror/ .......................................................................7

Dan B. Dobbs et al., The Law of Torts

§741 & n.42 (2d ed. May 2023

update) ...................................................................7

Gregory C. Keating, The Theory of

Enterprise Liability and Common

Law Strict Liability, 54 Vand. L.

Rev. 1285 (2001) ....................................................7

H.R. Rep. No. 94-1476, 94th Cong., 2d

Sess., 61 (1976) ......................................................6

Patry on Copyright, § 21:43 (2025).............................6

Restatement (Second) of Torts § 876,

Comment d, Illus. 9 (1979) ....................................8

U.S. Const. art I., § 8, cl. 8 ........................................24

X Terms of Service, Section 3 (effective

Nov. 15, 2024), available at

https://x.com/en/tos ................................................2

INTEREST OF AMICUS CURIAE 1

This case presents important questions regarding

the correct legal standards governing claims of secondary liability for copyright infringement. X Corp.

has a substantial interest in the standard by which

companies that provide the public with new technology for gathering information and sharing expression—from social media platforms to generative AI

tools—could become liable for third parties’ use of

that technology to engage in copyright infringement.

X Corp. is an American tech company established

in 2023 as the successor to Twitter, Inc., which was

founded in 2006. Since March 28, 2025, X Corp. has

been a wholly owned indirect subsidiary of xAI Holdings Corp. X Corp. provides an internet communications platform to the public, with which hundreds of

millions of users create hundreds of millions of posts

every day to share their views, engage with the views

of others, and follow current events. People who promise to follow X Corp.’s rules and terms of use may post

messages that can also contain images, videos, and

links to other websites or media sources. This feature

that permits members of the public to instantaneously express themselves—without first undergoing a

review or selection by a publisher—has led to claims

of infringement against X Corp. for secondary liability, even though X Corp.’s terms of service require

each of its users to agree to this statement:

Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief.

You represent and warrant that you have, or

have obtained, all rights, licenses, consents,

permissions, power and/or authority necessary

to grant the rights granted herein for any Content that you submit, post or display on or

through the Services. You agree that such Content will not contain material subject to copyright or other proprietary rights, unless you

have necessary permission or are otherwise legally entitled to post the material and to grant

us the license described above. 2

X Corp. respects intellectual property and is itself

the owner of intellectual property. It has adopted robust procedures and policies aimed at reducing instances of copyright infringement on its platform. But

this has not insulated X Corp., or other technology

companies, from the prospect of staggering statutory

damages from claims of secondary infringement.

X Corp. is gravely concerned that this problem could

become existential for technology companies—and result in substantial censorship of its users—if the

Court endorses the Fourth Circuit’s holding that

merely letting accounts that may belong to repeat infringers continue to have access to a service may render a company culpable for copyright infringement.

This is particularly so given that in X Corp.’s experience, the alleged “repeat infringers” are not typically

those who intend to illicitly distribute full copies of

copyrighted materials. Rather, they include everyday

users who happen to make innocuous posts such as

brief videos of themselves at events or at the gym that

X Terms of Service, Section 3 (effective Nov. 15, 2024),

https://x.com/en/tos.

capture copyrighted music incidentally playing in the

background.

X Corp. submits this brief to inform the Court that

the Fourth Circuit’s expansion of secondary liability

to include merely “supplying a product with

knowledge that the recipient will use it to infringe

copyrights,” Pet. App. 27a, is an incorrect application

of a doctrine that should be “cabin[ed]” to “cases of

truly culpable conduct.” Twitter, Inc. v. Taamneh, 598

U.S. 471, 489 (2023). The Fourth Circuit’s conclusion

that a company’s inaction or non-feasance can support a $1 billion award for contributory liability cannot be squared with this Court’s decision in Taamneh,

which requires “affirmative and culpable” participation in the underlying misconduct. 598 U.S. at 505.

Though Taamneh was not a copyright case, it raised

an issue at the heart of the present case: what does

the common law invariably require for imposing contributory liability? As the successful petitioner in

Taamneh and a platform that the public entrusts with

hosting billions of posts containing expression of hundreds of millions of Americans each day, X Corp. is

well suited to provide assistance to the Court and

show how the legal standards for contributory infringement affect both the technology industry’s effort

to bring innovative products to the public and freedom

of expression on the internet. For the reasons provided below, we urge the Court to reverse the Fourth

Circuit and hold that contributory liability, as this

Court explained in Taamneh, cannot be imposed

without conscious and culpable participation in the offense alleged.

SUMMARY OF ARGUMENT

This Court’s unanimous opinion in Twitter, Inc. v.

Taamneh, 598 U.S. 471 (2023), applied the well established common-law principles of contributory liability

to internet tools. That decision and its significant

guidance—that aiding-and-abetting liability is permissible only where the evidence establishes active

and culpable participation in the third-party’s misconduct—applies to copyright infringement, which is

also governed by common-law principles.

This Court’s indirect-liability decisions in copyright cases involving new technology—namely Sony

Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417

(1984), and Metro-Goldwyn-Mayer Studios, Inc. v.

Grokster, Ltd., 545 U.S. 913 (2005)—are consistent

with the common-law principles for indirect liability

this Court confirmed in Taamneh. The Court has

never held that merely providing (or continuing to

provide) to known “infringers”—many of whom, in our

experience, are not nefarious actors but regular

Americans posting everyday things on the internet

that inadvertently sweeps in snippets of copyrighted

material—the products or services that could be used

to infringe copyrights constitutes the active and culpable participation required to establish that the defendant “materially contributed” to the users’

infringement. The Fourth Circuit’s unjustified deviation from Taamneh, Sony, and Grokster requires reversal.

Further, the lower courts’ confusion over the

standard that governs secondary copyright infringement suggests that this Court should expressly clarify

that the failure to take affirmative steps to terminate

services of accounts that may be used by known infringers (the Fourth Circuit) or to take other “simple

measures” (the Ninth Circuit) is not, on its own, sufficient to establish secondary liability. A requirement

of conscious and culpable participation in making the

direct infringement succeed is not only the necessary

corollary of Taamneh, it also is compelled both by the

benefits the public, as well as the limits of copyright

that are dictated by the need to preserve First Amendment speech rights. See Google LLC v. Oracle Am.,

Inc., 593 U.S. 1, 16 (2021) (“[c]opyright has practical

objectives” and “grants an author an exclusive right

to produce his work …, not as a special reward, but in

order to encourage the production of works that others might reproduce more cheaply”); Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (copyright law contains

“built-in First Amendment accommodations”).

ARGUMENT

THE DECISION BELOW IMPERMISSIBLY EXPANDS CONTRIBUTORY LIABILITY FOR COPYRIGHT INFRINGEMENT

BEYOND THE LIMITS SET FORTH IN

TAAMNEH

Taamneh Confirmed that Contributory Liability Must Be Based on Culpable Participation in Misconduct.

1. Contributory liability in copyright law is a common-law doctrine. The Copyright Act permits a copyright owner to “institute an action” against “an

infringer of the copyright” who violates one or more of

the exclusive rights in the copyrighted works.

17 U.S.C. § 501(a)-(b). An “infringer” has traditionally been interpreted to include both direct and indirect infringers. Section 106 provides that a copyright

owner has both the exclusive rights to “reproduce,”

“prepare derivative works,” “distribute,” publicly

“perform,” and publicly “display” their copyrighted

works, and “to authorize” those acts. Thus, even

though this Court has stated that the Copyright Act

“does not expressly render anyone liable for infringement committed by another,” Sony, 464 U.S. at 434,

the inclusion of the term “to authorize” ensures that

the common law of contributory infringement would

be applied in the 1976 Act. See 6 William F. Patry,

Patry on Copyright, § 21:43, Westlaw (2025).

Although a claim for copyright infringement may

be asserted against alleged indirect infringers, Congress has never prescribed a particular standard for

imposing secondary liability for infringement of the

Section 106 rights. 3 See Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1161–62

(2d Cir. 1971) (“Although the Act does not specifically

delineate what kind or degree of participation in an

infringement is actionable, it has long been held that

one may be liable for copyright infringement even

though he has not himself performed the protected

composition.”). Rather, the standards that govern

“the non-statutory tort of contributory infringement,”

Congress referenced one example of indirect infringement: “a

person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of

renting it to others for purposes of unauthorized public performance.” H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., 61 (1976).

Sony, 464 U.S. at 428, “emerged from common law

principles,” Grokster, 545 U.S. at 930. The commonlaw principles of “accomplice” liability, Kalem Co. v.

Harper Bros., 222 U.S. 55, 62–63 (1911), and aidingand-abetting liability shaped the contours of the

“knowing[] participat[ion]” that would be sufficient to

contributory liability for a third party’s infringing

conduct, Gershwin, 443 F.2d at 1162. 4 See In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003)

(“the law of aiding and abetting” is “the criminal counterpart to contributory infringement”); Dan B. Dobbs

et al., The Law of Torts § 741 & n.42 (2d ed. May 2023

update) (“aiding and abetting” is the “premise of contributory infringement”).

2. In Taamneh, this Court applied long-standing

common-law principles of contributory liability to a

dispute in the digital age. The Justice Against Sponsors of Terrorism Act (JASTA) provided that “[v]ictims of terrorist acts … may seek to recover from

those who aided and abetted the terrorist act that injured them.” 598 U.S. at 478; see 18 U.S.C.

§ 2333(d)(2). Under the JASTA, victims of a terrorist

attack and their family members sued the operators

of social media platforms—Google (YouTube), Meta

Contributory infringement, despite occasional misplaced comments, is not a form of “enterprise liability.” See Bruce E.

Boyden, The Persistence of Legal Error, Marquette Law School

Faculty Blog (Feb. 15, 2011), https://law.marquette.edu/facultyblog/2011/02/the-persistence-of-legal-error/. Enterprise liability is a form of (or according to some, very close to) strict liability;

that is contrary to the requirement that the contributory infringer possess knowledge of the direct infringement. See Gregory C. Keating, The Theory of Enterprise Liability and Common

Law Strict Liability, 54 Vand. L. Rev. 1285 (2001).

(Facebook), and X Corp. (Twitter)—seeking to hold

them secondarily liable for terrorist acts. The plaintiffs alleged that the tech company defendants had

provided platforms to ISIS and its adherents who

“used these platforms for years as tools for recruiting,

fundraising, and spreading their propaganda” that

were needed to commit the terrorist attack. Taamneh,

598 U.S. at 481.

Like the Copyright Act, the JASTA did not expressly set forth the standards for secondary liability.

This Court thus turned to “the common law, which

has long held aiders-and-abettors secondarily liable

for the wrongful acts of others.” Id. at 484. Based on a

survey of aiding-and-abetting precedent in this Court

and the lower courts, the Court identified the following “clear guideposts,” id. at 506, for determining the

appropriateness of secondary liability:

First, secondary liability is not “boundless”: it

must be “cabin[ed]” to “truly culpable conduct.” Id. at

488–89. Specifically, this Court warned that “aidingand-abetting liability” should not be “taken too far” to

sweep in “ordinary merchants [who] could become liable for any misuse of their goods and services.” Id. at

489. That is because secondary liability does not aim

to impose liability on those “who gave only tangential

assistance”—such as those who “merely deliver mail

or transmit emails”—for “the tortious messages contained therein.” Id. at 488–89 (citing Restatement

(Second) of Torts § 876, Comment d, Illus. 9 (1979)).

Second, the limited situations where “truly culpable” conduct leads to secondary liability generally require affirmative and active conduct, i.e., “wrongful

conduct, bad acts, and misfeasance,” and not “mere

omissions, inactions, or nonfeasance.” Id. at 489 (quotation marks and citation omitted).

Third, the “conceptual core that has animated

aiding-and-abetting liability for centuries” requires

that a defendant be held liable only when it “consciously and culpably ‘participate[d]’ in a wrongful act

so as to help ‘make it succeed.’” Id. at 493 (quoting Nye

& Nissen v. United States, 336 U.S. 613, 619 (1949)).

This requirement ensures that “passive actors like

banks” do not become liable for “their customers’

crimes by virtue of carrying out routine transactions.”

Id. at 491.

Applying these principles, this Court unanimously

held that the social media platforms were not secondarily liable for the terrorist attack. Id. at 497–98. Like

Respondents here, the plaintiffs in Taamneh argued

that the tech company defendants should be liable for

the terrorist attack because they possessed

knowledge that “ISIS has used their platforms for

years,” but “failed to … remove a substantial number

of ISIS-related accounts, posts, and videos.” Id. at

481.

But the defendants’ alleged “insufficient steps to

ensure that ISIS supporters and ISIS-related content

were removed from their platform” did not mean that

the defendants “culpably associated themselves” with

the terrorist attack, or “participated in it as something that they wished to bring about, or sought by

their action to make it succeed.” Id. at 498, 505 (quoting Nye & Nissen, 336 U.S. at 319); see also Smith &

Wesson Brands, Inc. v. Estados Unidos Mexicanos,

605 U.S. 280, 293 (2025) (“[w]hen a company merely

knows that ‘some bad actors’ are taking ‘advantage’ of

its products for criminal purposes, it does not aid and

abet[,] … even if the company could adopt measures

to reduce their users’ downstream crimes” (quoting

Taamneh, 598 U.S. at 503)). Absent “any special

treatment or words of encouragement” to ISIS, the

tech companies could not be contributorily liable for

providing their services to “the internet-using public.”

Taamneh, 598 U.S. at 498–99; see also id. at 500 (noting that “defendants’ relationship with ISIS and its

supporters appears to have been the same as their relationship with their billion-plus other users: arm’s

length, passive, and largely indifferent”).

3. Even though the Fourth Circuit purportedly

based its decision on the principles of aiding-andabetting liability, it failed to acknowledge Taamneh.

Pet. App. 27a. Instead, the court below reached a diametrically opposite conclusion, based on the same

critical set of facts: the court of appeals upheld the

jury verdict of contributory liability because Cox purportedly took “insufficient steps” to ensure that the

direct infringers were “removed” from internet access.

But the trial record showed that Cox, like the tech

company defendants in Taamneh, made its internet

service generally available to “the internet-using public,” without giving “any special treatment or words of

encouragement” to those users who have engaged in

that “a reasonable jury could have found that Cox provided that service ‘with actual knowledge’ of infringement occurring ‘on specific subscribers’ accounts,’ yet

‘fail[ed] to address’ that infringement occurring on its

network” (citation omitted)).

The Fourth Circuit concluded that “supplying a

product with knowledge that the recipient will use it

to infringe copyrights is exactly the sort of culpable

conduct sufficient for contributory infringement.”

Pet. App. 27a (emphasis added). That cannot be

squared with this Court’s unequivocal statement in

Taamneh that such knowledge does not rise to “conscious[] and culpabl[e] ‘participat[ion]’ in a wrongful

act so as to help ‘make it succeed.” 598 U.S. at 493,

498.

The Fourth Circuit also erroneously assumed that

a defendant who continued to provide an essential

tool for free speech to the so-called “repeat infringers”

is “presumed to intend the substantially certain results” that those users would commit copyright infringement. Pet. App. 27a-28a. But the law creates no

such presumption of intent. To the contrary, this

Court held that permitting even a known terrorist organization to post on the platform was not sufficient

to find a culpable intent. Taamneh, 598 U.S. at 498–

99. Presuming that the internet service provider intended its users to infringe copyright would be even

more attenuated here. At that point, the defendant

knows only that a content owner believes that one of

its works may have been infringed. But those copyright-infringement notices not infrequently contain

mis-identification of copyrighted works and other errors. Further, they do not only target “pirates” or

other bad actors who aim to illicitly distribute full copies of copyrighted films, music, or books. Rather, in X

Corp.’s experience, copyright-infringement notices

implicate ordinary Americans posting about the

events and experiences in their lives that incorporate

portions of copyrighted works. Declining to take away

an important tool of expression from these ordinary

Americans is not the kind of inaction that the doctrine

of contributory or aiding-and-abetting liability was

meant to reach. Indeed, this Court expressly excluded

the providers of these free speech tools from liability.

Id. at 489 (contributory infringement law is designed

to avoid liability for those who “merely deliver mail or

transmit emails”).

Nor can the Fourth Circuit’s decision be reconciled

with this Court’s precedent by limiting Taamneh to

actions brought under the JASTA. This Court interpreted “[t]he phrase ‘aids and abets’” not just under

the JASTA, but “as elsewhere” under the common

law, as requiring “a conscious, voluntary, and culpable participation in another’s wrongdoing.” Id. at 493

(emphasis added). The common-law principles that

“animated aiding-and-abetting liability for centuries”

also govern the standard for secondary liability in copyright context. Id.; see also Screen Gems-Columbia

Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399,

403 (S.D.N.Y. 1966) (“the basic common law doctrine

that one who knowingly participates in or further a

tortious act is jointly and severally liable with the

prime tort-feasor is applicable in suits arising under

the Copyright Act”).

The Fourth Circuit contravened the common-law

principles governing aiding-and-abetting liability for

at least two additional reasons. First, the law does

not impose a duty on “communication-providing services to terminate customers after discovering that

the customers were using the service for illicit ends.”

Taamneh, 598 U.S. at 501. Thus, absent a finding of

culpable participation, companies cannot be held liable. Second, aiding-and-abetting liability requires

conduct that is tethered to the specific instance of misconduct—not any aid that is tangentially related to

the possibility of a future commission of a tort. See id.

at 506 (“[t]he point of aiding and abetting is to impose

liability on those who consciously and culpably participated in the tort at issue” (emphasis added)); see,

e.g., Landy v. Fed. Deposit Ins. Corp., 486 F.2d 139, at

159–63 (3d. Cir. 1973) (no aiding-and-abetting liability in securities case where the defendants “were not

involved in any manner with the sale of the [particular] shares,” even where they had allegedly assisted

with executing other transactions).

Taamneh Is Consistent with Sony

and Grokster.

1. The principles explained in Taamneh are consistent with the law governing contributory copyright

infringement: to be liable, a defendant must have

“materially contributed”—not merely passively contributed—to the acts of direct infringement. See Fortnightly Corp. v. United Artists Tel., Inc., 392 U.S. 390,

397 (1968) (“mere quantitative contribution cannot be

the proper test to determine copyright liability” because that would extend indirect liability to “the shopkeeper who sells or rents television sets, and, indeed,

every television set manufacturer”).

The Court affirmed the principle that passive participation is insufficient in its 1984 Sony decision.

Sony addressed whether the producer of then-new

Betamax technology “‘contributed’ to the infringement of the copyright” by supplying “a piece of equipment that is generally capable of copying” copyrighted

televised programs on a VHS tape. 464 U.S. at 437–

38. Because the Betamax recorder was “capable of

substantial noninfringing uses,” Sony’s sale of it “to

the general public” could not form the basis for

contributory infringement. Id. at 456. This adoption

of the staple article of commerce doctrine limited the

scope of contributory infringement to “truly culpable

conduct.” Taamneh, 598 U.S. at 489. The Sony decision recognized the truism that dual use technology,

such as the platform offered by X Corp., can always be

used by some to infringe, but so long as that technology is not “good for nothing else” the public interest in

the non-infringing uses dictates a finding of no contributory infringement. See Sony, 464 U.S. at 443.

Thus, “[w]hen a charge of contributory infringement

is predicated entirely on the sale of an article of commerce that is used by the purchaser to infringe …, the

sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for

legitimate, unobjectionable purposes.” Id. at 438–39,

440, 442.

Sony also provided important guidance on the requisite level of “culpable participation” for contributory

infringement. The manufacturer’s general awareness

that the product could (or even would) serve infringing uses would not be sufficient to support liability for

third-party users’ subsequent direct infringement.

The staple article of commerce doctrine prevented

contributory liability from becoming boundless by

“absolv[ing] the equivocal conduct of selling an item

with substantial lawful as well as unlawful uses, and

limit[ed] liability to instances of more acute fault than

the mere understanding that some of one’s products

will be misused.” Grokster, 545 U.S. at 932–33 (discussing Sony).

The Ninth Circuit had noted that Sony was aware

that some consumers used the Betamax to make

unauthorized copies of copyrighted television shows.

See 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 Betamax’s major use would be to

record copyrighted programs off-the-air”). That did

not alter this Court’s analysis of contributory liability

for the supplier, even though “Sony’s advertisements

urged consumers to buy the VCR to ‘record favorite

shows’ or ‘build a library’ of recorded programs.”

Grokster, 545 U.S. at 931 (quoting Sony, 464 U.S. at

459 (Blackmum, J., dissenting)).

These advertisements failed to provide “evidence

that Sony had expressed an object of bringing about

taping in violation of copyright or had taken active

steps to increase its profits from unlawful taping.” Id.

at 931 (discussing Sony). There was no evidence that

Sony treated these infringers differently or provided

special aid for their unlawful taping.

2. Twenty years after Sony, the Court again addressed indirect copyright infringement and applied

the same common-law principles the Court would

later rely upon in Taamneh. The question presented

in Grokster was: “where evidence goes beyond a product’s characteristics or the knowledge that it may be

put to infringing uses,” what “statements or actions

directed to promoting infringement” would permit indirect liability? 545 U.S. at 935. The Court based its

decision on the following principles:

First, secondary infringement applies only to “culpable expression and conduct.” 545 U.S. at 937. Prior

to the Court’s opinion in Grokster, there were two distinct types of secondary liability: (1) vicarious liability; and (2) contributory infringement. Both require

an act of direct infringement. Without direct infringement, there is nothing to “contribute to,” or to be vicariously liable for. In Grokster, the Court created

what may be a third category of secondary liability—

inducement—that is applicable only to circumstances

where infringement arises out of the use of a product

that has other substantial non-infringing uses. See

Concord Music Grp., Inc. v. X Corp., 2024 WL 945325,

at *6 (M.D. Tenn. Mar. 5, 2024) (“Grokster was not intended to be a comprehensive statement of the boundaries of contributory infringement under the

pattern of behavior before the Court”).

Grokster did not attempt to cut back on application

of the staple article of commerce doctrine to contributory infringement claims based solely on “material

contribution” theory; it instead decided the case on

the new inducement theory, which provides a narrow

exception to the Sony doctrine. The Court adopted

this “sensible” approach because it is limited to imposing liability on only “one who distributes a device

with the object of promoting its use to infringe copyright, as shown by clear expression or other

affirmative steps taken to foster infringement.” Grokster, 545 U.S. at 936–37.

Second, the Court confirmed that “mere[] … failure to take affirmative steps to prevent infringement”

does not induce infringement “in the absence of other

evidence of intent.” Grokster, 545 U.S. at 939 n.12.

This principle is later reflected in Taamneh where the

Court confirmed that “mere omission, inactions, or

nonfeasance” cannot be the basis for secondary liability. 598 U.S. at 489.

Third, only evidence of “intentionally inducing

or encouraging direct infringement,” such as the distribution of “a device with the object of promoting its

use to infringe copyright … or other affirmative

steps taken to foster infringement,” can support inducement liability. Id. at 930, 936–37 (emphasis

added). The Court justified the defendants’ liability

under the limited doctrine of inducement because

“[t]he record [was] replete with evidence that from the

moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted

works, and each took active steps to encourage infringement.” Id. at 923–24. Indeed, the defendants’

“business models” evinced that “their principal objective was use of their software to download copyrighted

works.” Id. at 926. It was a “classic” case in which “one

induces commission of infringement by another, or

‘entic[es] or persuad[es] another’ to infringe, … as by

advertising.” Id. at 935 (citation omitted). The Court

would require the same in Taamneh by requiring conscious and culpable participation in the misconduct to

be secondarily liable for it. See Taamneh, 598 U.S. at

493.

3. Sony and Grokster—reinforced by Taamneh—

govern this case. The Court stated in each of the three

cases that declining to take action based on the

knowledge that others have put the defendant’s products to infringing uses is an insufficient basis for imposing indirect liability for third parties’

infringement. That is why the Court declined to impose contributory liability on Sony even though the

record showed that Sony “knew and expected that

Betamax’s major use would be to record copyrighted

programs off-the-air.” Sony, 659 F.2d at 975. Likewise, the defendants in Grokster were “aware that users employ their software primarily to download

copyrighted files, even if the decentralized FastTrack

and Gnutella networks fail to reveal which files are

being copied, and when.” Grokster, 545 U.S. at 923.

But the Court said that even the “knowledge of … actual infringing uses would not be enough … to subject

a distributor to liability.” Id. at 937. The Court exercised proper “reluctance to find[ing] liability when a

defendant merely sells a commercial product suitable

for some lawful use.” Id. at 936. The Court again declined to adopt an indirect liability rule that would

render “ordinary merchants,” “banks” facilitating

“routine transactions,” and those who “generally” offer services “to the internet-using public” liable for

someone else’s misuse of their products or services.

Taamneh, 598 U.S. at 489, 491, 498.

The Fourth Circuit held that “supplying a product

with knowledge that the recipient will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for contributory infringement,” Pet.

App. 27a. That holding cannot be squared with Sony

or Grokster no more than it can be reconciled with

Taamneh. This Court should correct the error of the

court of appeals by holding that absent “clear expression or other affirmative steps taken to foster infringement,” Grokster, 545 U.S. at 936–37, or

“culpable participation” in the infringement,

Taamneh, 598 U.S. at 493, passive inaction with respect to infringement notices cannot result in liability

for secondary copyright infringement. See also Concord Music Grp., 2024 WL 945325, at *7 (no authority

“support[s] an argument that the operator of a social

media platform materially contributes to infringement simply because there are some preventive steps

that the operator could have taken but did not”).

II.

THE COURT SHOULD CLARIFY THAT

TAAMNEH APPLIES TO COPYRIGHT

Clarification Is Needed to Address

Lower Courts’ Confusion.

In addition to reversing the Fourth Circuit, this

Court should provide the clarification that the common-law principles in Taamneh that circumscribe

contributory liability to its proper limits apply to copyright infringement. As noted above, the appropriate

standard for contributory infringement where a staple article of commerce is involved is more than

knowledge that others have put the defendant’s products to infringing uses. This Court should now expressly require “culpable intent” to cause

infringement by “consciously and culpably” inducing

the infringement. Taamneh, 598 U.S. at 500. That

standard would avoid future errors of holding that a

simple failure to prevent repeat or known infringers—including those whose accounts had been

temporarily suspended, or whose posted content had

been removed based on notices of copyright infringement—from remaining on the service can constitute

contributory infringement.

Without this Court’s guidance, companies that engage in “mere” creation and provision of “cell phones,

email, or the internet generally” will face the prospect

of liability to the content industry, even though this

Court has said that those who provide these articles

of commerce are “not culpable.” Id. at 499. The confusion over secondary infringement is pervasive; circuits beyond the Fourth have also taken contributory

liability “too far” to hold “ordinary merchants … liable

for any misuse of their goods and services.” Id. at 489.

For example, the Ninth Circuit has correctly recognized that Grokster applied “rules of fault-based liability derived from the common law.” Perfect 10, Inc.

v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir.

2007) (quoting Grokster, 545 U.S. at 934–35). But it

inexplicably deviated from those common-law principles to conclude that “a computer system operator can

be held contributorily liable” if the operator can “‘take

simple measures to prevent further damage’ to copyrighted works, … yet continues to provide access to

infringing works.” Id. at 1171 (quoting Religious Tech.

Ctr. v. Netcom On-Line Comm. Servs., Inc., 907 F.

Supp. 1361, 1375 (N.D. Cal. 1995)). This “simple

measures” test cannot be squared with the longstanding common-law principles that cabin liability to “unmistakable” and “culpable” participation in the

wrongful conduct. See Grokster, 545 U.S. at 937, 940.

Likewise, based on a misreading of Sony, the district court in N.Y. Times Co. v. Microsoft Corp., 2025

WL 1009179 (S.D.N.Y. Apr. 4, 2025)—a consolidated

case involving 12 suits brought against artificial intelligence companies—declined to dismiss a claim for

contributory infringement, finding that the plaintiffs

had plausibly alleged knowledge of alleged thirdparty infringement by customers of those generative

AI products. The district court based its decision on

its belief that Sony and Grokster had provided no

guidance on liability based on material contribution.

2025 WL 1009179, at *11. But as discussed, Sony

squarely (and solely) addressed the material contribution prong of contributory infringement, and Grokster discussed the limited circumstances—plainly

inapplicable in the AI case—where specific, additional inducing conduct may justify the imposition of

indirect liability notwithstanding the existence of

substantial noninfringing uses. The erroneous efforts

to render the staple article of commerce doctrine inapplicable to the new AI technology may be symptomatic of a greater problem: the lower courts lack

proper guidance from this Court on the proper standards for contributory infringement.

Clarification Is Needed to Balance

Protection with Free Speech and Innovation.

As the Court recognized in Taamneh, there is a

danger that an overbroad application of contributory

infringement “would run roughshod over the typical

limits on tort liability and taking aiding and abetting

far beyond its essential culpability moorings.” 598

U.S. at 502–03. Indeed, without this Court’s guidance,

the misapplication of contributory infringement law

could wreak havoc on the tech industry, including the

nascent AI industry.

That is because if contributory liability is not confined to “truly culpable conduct,” id. at 489, it may become too costly to offer technological innovations to

the public. Although copyright owners may assert

their claims against individual infringers for direct

infringement, they do not generally do so. Instead, as

in this case, content owners assemble thousands of

copyrighted works allegedly infringed by someone

else, and sue service providers on theories of secondary liability in pursuit of massive verdicts like the billion dollars awarded by the jury here. Companies

offering innovative technology to the internet-using

public have no choice but to constrain their actions in

the face of that uncertainty and existential risk.

There is no evidence Cox derived a penny from its

subscribers’ conduct. Cox’s entry level monthly fee for

internet service for families is $9.95 per month. That

subscription fee must be multiplied by 10,000 to arrive at the jury’s award per work. A subscription for

all songs on Apple Music costs $10.99 a month. To allow a billion dollar award against a party that did not

itself directly infringe, did not participate in the infringement, and did not financially benefit from infringing uses versus non-infringing uses by its

subscribers is a grotesque distortion of the purposes

of copyright law and common-law principles of liability. Appropriate standards for contributory infringement, based on Taamneh, can prevent this.

Otherwise, there will remain significant risks to

freedom of expression on the internet, because ISPs,

social media, and tech companies will be coerced to

clamp down on any possibility of a user posting a potentially copyrighted material in the future to avoid

billion dollar judgments. As noted above, see supra

Section I.A, copyright infringement notices often

sweep in ordinary Americans posting about their lives

or making other original content. The lower courts’ erroneous liability standards, without this Court’s correction, will continue to place on the companies two

equally untenable options: a massive, even existential, liability risk or a need to take away an important

free speech tool from their customers, users, or subscribers. There has been an evergreen threat of substantial legal liability from providing a tool for

learning and expression. The adoption of the Fourth

Circuit’s standard would encourage companies to be

overly aggressive in terminating ordinary users’ accounts to avoid liability so as to avoid the risk that

“repeat infringers” would post even innocuous content

that may contain a copyrighted work. That kind of

policy would pose a substantial encroachment on free

speech rights, contrary to copyright law’s built-in

First Amendment protections. Eldred, 537 U.S. at 219

(copyright law contains “built-in First Amendment

accommodations”); see also Golan v. Holder, 565 U.S.

302, 328–29 (2012) (referring to “speech-protective

purposes and safeguards embraced by copyright

law”).

cl. 8, and the public interest undergirds all its elements. See Sony, 464 U.S. at 429 (the grant of copyright is “a means by which an important public

purpose may be achieved”). As this Court explained in

Grokster, where the defendant sells “an item with

substantial lawful as well as unlawful uses,” adopting

a rule that limits liability to “instances of more acute

fault than the mere understanding that some of one’s

products will be misused” will “leave[] breathing room

for innovation and a vigorous commerce.” 545 U.S. at

932–33.

CONCLUSION

For those reasons, the Court should reverse the

judgment of the court of appeals and hold that contributory liability requires conscious and culpable

participation in copyright infringement.

Respectfully submitted.

ANDREW H. SCHAPIRO

Counsel of Record

WILLIAM F. PATRY

JESSICA A. ROSE

QUINN EMANUEL

URQUHART

& SULLIVAN, LLP

295 5th Avenue, 9th Floor

New York, NY 10016

(212) 849-7000

andrewschapiro@

quinnemanuel.com

Counsel for Amicus Curiae

MOON HEE LEE

QUINN EMANUEL

URQUHART

& SULLIVAN, LLP

865 S. Figueroa St.

10th Floor

Los Angeles, CA 90017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.