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.,

–––V.–––

Petitioners,

SONY MUSIC ENTERTAINMENT, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES

UNION, AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA, AND CENTER FOR DEMOCRACY AND

TECHNOLOGY IN SUPPORT OF PETITIONERS

Jennifer Granick

Evelyn Danforth-Scott

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street

Suite 700

San Francisco, CA 94104

Eden B. Heilman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

VIRGINIA

1401 K St NW #200

Washington, DC 20005 529

Rebecca Tushnet

Counsel of Record

Mark Lemley

Christopher J. Sprigman

LEX LUMINA LLP

745 Fifth Avenue

Suite 500

New York, NY 10151

(703) 593-6759

rtushnet@lex-lumina.com

Samir Jain

Kate Ruane

CENTER FOR DEMOCRACY AND

TECHNOLOGY

1401 K St NW

Washington, DC 20005

Counsel for Amici American Civil Liberties Union, American

Civil Liberties Union of Virginia, and Center for Democracy

and Technology

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI ............................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 3

ARGUMENT ............................................................... 7

THE CONTRIBUTORY LIABILITY RULE

APPLIED BY THE FOURTH CIRCUIT

CONFLICTS WITH BASIC PRINCIPLES OF

INTERMEDIARY

LIABILITY

FOR

TRANSMITTING SPEECH. ................................ 7

A. Interpretation

the

Contributory Liability Standard Must

Account for Effects on Speech. ...................... 7

B. Liability For Contributory Copyright

Infringement Requires Affirmative Acts

That Constitute Conscious, Voluntary,

and Culpable Participation in a ThirdParty’s Direct Infringement of Plaintiff’s

Contributory copyright infringement

is an application of standard common

law concepts. ......................................... 12

Taamneh provides the proper model. .. 13

C. Cox’s Mere Failure to Terminate

Customers

Based

Plaintiffs’

Allegations of Repeat Infringement Do

Not Meet This Court’s Standard For

Contributory Liability. ................................ 18

Merely

continuing

provide

“infrastructure” to someone engaged

in wrongdoing is not an “affirmative

act” demonstrating the requisite

culpable participation. .......................... 18

Given

the

context—transitory

network communications—Cox is

technologically unable to verify

allegations of infringement. ................. 20

The consequences for ISP customers

whose accounts are terminated are

very severe. ........................................... 27

II. THE FOURTH CIRCUIT’S OVERLY BROAD

INTERPRETATION

THE

WILLFULNESS TEST AS APPLIED TO

ISPS WILL FURTHER RESULT IN THE

SUPPRESSION OF LAWFUL SPEECH. ......... 29

CONCLUSION.......................................................... 33

TABLE OF AUTHORITIES

Cases

Page(s)

Andy Warhol Found. for the Visual Arts, Inc. v.

Goldsmith,

598 U.S. 508 (2023) ............................................ 26

Aro Mfg. Co. v. Convertible Top Replacement Co.,

377 U. S. 476 (1964) ........................................... 30

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ...................................... 3, 9, 11

BMG Rts. Mgmt. LLC v. Cox Commc’ns, Inc.,

881 F.3d 293 (2018) ...................................... 22, 30

Brandenburg v. Ohio,

395 U.S. 444 (1969) .............................................. 7

Camp v. Dema,

948 F.2d 455 (8th Cir. 1991) .............................. 16

Cnty. of Washington v. Gunther,

452 U.S. 161 (1981) ............................................ 12

Columbia Pictures Indus., Inc. v. Miramax Films

Corp.,

11 F. Supp. 2d 1179 (C.D. Cal. 1998) ................ 27

Crosby v. Bradstreet Co.,

312 F.2d 483 (2d Cir. 1963) ............................... 11

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019) ................................ 2

iii

E.K. v. Dep’t of Def. Educ. Activity,

No. 35-cv-637 (E.D. Va. Apr. 15, 2025)................ 2

eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388 (2006) ............................................ 13

Frank Music Corp. v. Metro-Goldwyn-Mayer,

Inc.,

772 F.2d 505 (9th Cir. 1985) .............................. 27

Free Speech Coal. v. Paxton,

606 U.S. ___ (2025) ............................................... 1

Geophysical Serv., Inc. v. TGS-NOPEC

Geophysical Co.,

850 F.3d 785 (5th Cir. 2017) .............................. 13

Ginsberg v. New York,

390 U.S. 629 (1968) ............................................ 10

Global-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 754 (2011) ...................................... 13, 30

Grant v. Trump,

749 F. Supp. 3d 423 (S.D.N.Y. 2024) ................. 27

Halberstam v. Welch,

705 F.2d 472 (D.C. Cir. 1983) ................ 15, 18, 20

Hamling v. United States,

418 U.S. 87 (1974) ................................................ 9

Harper & Row Publishers, Inc. v. Nation Enters.,

471 U.S. 539 (1985) ............................................ 27

In re Gender Queer,

No. CL22-1985 (Va. Cir. Ct. Va. Beach Aug.

30, 2022) ............................................................... 2

Isaac Hayes Enters., LLC v. Trump,

No. 24-cv-3639, 2024 WL 4148758 (N.D. Ga.

Sep. 11, 2024) ..................................................... 27

Manual Enters., Inc. v. Day,

370 U.S. 478 (1962) ...................................... 3, 8, 9

McCarthy v. Fuller,

810 F.3d 456 (7th Cir. 2015) .............................. 10

Metro. Opera Ass’n v. Local 100, Hotel Emps. &

Rest. Emps. Int’l Union,

239 F.3d 172 (2d Cir. 2001) ............................... 11

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

545 U.S. 913 (2005) ................................ 17, 30, 31

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 7

N.Y. Times Co., Inc. v. Tasini,

533 U.S. 483 (2001) ............................................ 27

NRA v. Vullo,

602 U.S. 175 (2024) .............................................. 1

Packingham v. North Carolina,

582 U.S. 98 (2017) .......................................... 4, 10

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) ............................................ 26

RCA/Ariola Int’l, Inc. v. Thomas & Grayston Co.,

845 F.2d 773 (8th Cir. 1988) .............................. 31

Ringgold v. Black Ent. Television, Inc.,

126 F.3d 70 (2d Cir. 1997) ................................. 27

Roy Export Co. v. Columbia Broadcasting Co.,

672 F.2d 1095 (2d Cir. 1982) ............................. 27

Sindi v. El-Moslimany,

896 F.3d 1 (1st Cir. 2018) .................................. 11

Smith v. California,

361 U.S. 147 (1959) ............................ 3, 7, 8, 9, 10

Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417 (1984) ............................................ 15

Stewart v. Abend,

495 U.S. 207 (1990) ............................................ 27

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) .............. 1, 3, 6, 13–20, 28, 32

United States v. Eaglin,

913 F.3d 88 (2d Cir. 2019) ................................... 4

Venegas-Hernández v. Peer,

424 F.3d 50 (1st Cir. 2005) ................................ 22

Woods v. Universal City Studios, Inc.,

920 F. Supp. 62 (S.D.N.Y. 1996) ........................ 27

Constitutional Provisions

Page(s)

U.S. Const. amend. I ............... 1, 3, 4, 9, 11, 12, 17, 32

Statutes

Page(s)

Justice Against Sponsors of Terrorism Act,

18 U.S.C. §§ 2333, et seq. ............................ 14, 15

The Copyright Act,

17 U.S.C. §§ 101, et. seq. ............ 12, 18, 21, 29, 30

Other Authorities

Page(s)

Bartholomew, Mark & John Tehranian,

The Secret Life of Legal Doctrine: The

Divergent Evolution of Secondary Liability in

Trademark and Copyright Law,

121 Berkeley Tech. L.J. 1363 (2006) ................. 13

DOJ Orders doTerra Distributors to Pay $15,000

Each after TINA.org Complaint,

Truth In Advertising (Jan. 30, 2023) ................ 25

Fed. Commc’ns Comm’n.,

2020 Broadband Deployment Rep., 35 F.C.C.

Rcd. 8986 (June 24, 2020) .................................. 28

First Am. Compl. and Jury Demand,

Sony Music Ent. v. Cox Commc’ns, Inc., No.

18-cv-950, 2019 WL 7878711

(E.D. Va. Apr. 8, 2019) ....................................... 20

Fry, Richard,

More Adults Now Share Their Living Space,

Driven in Part by Parents Living with Their

Adult Children, Pew Rsch. Ctr.

(Jan. 31, 2018) ...................................................... 5

H.R. Rep. No. 94-1476 (1976),

as reprinted in 1976 U.S.C.C.A.N. 5659...... 12, 29

vii

Haselton, Todd,

Your Phone’s Unlimited Data Plan Isn’t

Really Unlimited—This is What You Really

Get, CNBC (July 14, 2018) ................................. 28

Horaczek, Stan,

Here’s How Much Internet Bandwidth You

Actually Need to Work from Home, Popular

Sci. (Mar. 12, 2020) ............................................ 28

Kreimer, Seth F.,

Censorship by Proxy: The First Amendment,

Internet Intermediaries, and the Problem of

the Weakest Link,

155 U. Pa. L. Rev. 11 (2006) .............................. 10

Lex Lumina,

Lex Lumina Files Suit on Behalf of Google

Against DMCA Fraudsters, Lex Lumina LLP

(Nov. 14, 2023).................................................... 25

Lumen Database Team,

Over Thirty Thousand DMCA Notices Reveal

an Organized Attempt to Abuse Copyright

Law, Medium (Apr. 22, 2022) ............................ 24

Maiberg, Emanuel,

How OnlyFans Piracy is Ruining the Internet

for Everyone, 404 Media (Sep. 1, 2025) ............. 24

Moody, Glyn,

How Backdated Articles Abuse the DMCA’s

Takedown System to Remove Legitimate

News Items, Walled Culture (May 17, 2022)..... 25

viii

Moody, Glyn,

How the DMCA is Being Weaponized Against

E-Commerce Sites, Techdirt (Nov. 20, 2023) ..... 25

Nimmer, Melville B. & David Nimmer,

Nimmer On Copyright § 14.04(B)(3) (1996) ...... 31

Perimeter 81,

Dedicated IP vs. Shared IP: Which One

Should You Use?, Check Point (May 1, 2024) ..... 5

Restatement of the Law, Copyright,

Tentative Draft No. 5 § 8.01 ........................ 12, 22

Seng, Daniel,

Copyrighting Copywrongs: An Empirical

Analysis of Errors with Automated DMCA

Takedown Notices, 37 Santa Clara High

Tech. L. J. 119 (2021) ......................................... 23

Statement of Professor Rebecca Tushnet on “The

Digital Millennium Copyright Act at 22:

What is it, why was it enacted, and where are

we now?”,

U.S. Senate, Comm. on the Judiciary

Subcomm. on Intell. Prop. (Feb. 11, 2020) ........ 25

Tr. of Section 512 Pub. Roundtable,

U.S. Copyright Off. Section 512 Study

(May 3, 2016) ...................................................... 25

Tr. of Section 512 Pub. Roundtable,

U.S. Copyright Off. Section 512 Study

(May 12, 2016) .............................................. 26, 28

Trostle, H. & Christopher Mitchell,

Profiles of Monopoly: Big Cable and Telecom,

Inst. for Loc. Self-Reliance (Aug. 2020) ............. 28

Urban, Jennifer M., Joe Karaganis & Brianna L.

Schofield,

Notice and Takedown in Everyday Practice

(March 22, 2017) .......................................... 22–24

INTEREST OF AMICI 1

Amici curiae are organizations that support

and advocate for internet users’ free expression and

other human rights. Amici have a strong interest in

ensuring that individuals are able to access and

participate in all forms of constitutionally protected

speech online, as the First Amendment guarantees.

The American Civil Liberties Union

(“ACLU”) is a nationwide, nonpartisan, nonprofit

organization dedicated to the principles of liberty and

equality embodied in the Constitution and our

nation’s civil rights laws. The ACLU has frequently

appeared in First Amendment cases in this Court and

courts around the country, both as counsel for a party

and as amicus curiae. See, e.g., Free Speech Coal. v.

Paxton, 606 U.S. ___ (2025) (counsel for Petitioners);

NRA v. Vullo, 602 U.S. 175 (2024) (counsel for

Petitioner); Twitter, Inc. v. Taamneh, 598 U.S. 471

(2023) (amicus).

The ACLU of Virginia is one of the ACLU’s

state affiliates with approximately 37,000 members

and 300,000 supporters. As an organization that

advocates for freedom of expression and access to

information throughout Virginia, the ACLU of

Virginia and its members have a strong interest in

preventing the arbitrary denial of access to the

1 Pursuant to Supreme Court Rule 37.6, counsel for amici certify

that no party’s counsel authored this brief in whole or in part; no

party or party’s counsel contributed money that was intended to

fund the preparation or submission of the brief; and no person

other than amici, their members, or their counsel contributed

money intended to fund the preparation or submission of the

brief.

internet. The ACLU of Virginia has appeared in courts

throughout Virginia as both amicus and direct counsel

in cases concerning the right to free expression. See,

e.g., Davison v. Randall, 912 F.3d 666 (4th Cir. 2019);

E.K. v. Dep’t of Def. Educ. Activity, No. 35-cv-637 (E.D.

Va. Apr. 15, 2025); In re Gender Queer, No. CL22-1985

(Va. Cir. Ct. Va. Beach Aug. 30, 2022).

The Center for Democracy & Technology

(CDT) is a non-profit, public interest organization

that for 30 years has worked to promote the

constitutional and democratic values of free

expression, privacy, equality, and individual liberty in

the digital age.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The First Amendment guards against the

possibility that the government will directly or

indirectly cause a speech intermediary—such as a

bookstore, a social media platform, or an internet

service provider (“ISP”)—to suppress otherwise

protected speech of its users for fear of liability. Where

First Amendment interests are involved, this Court

has long recognized the importance of caution in

imposing culpability for the wrongful acts of another.

See, e.g., Smith v. California, 361 U.S. 147 (1959);

Manual Enters., Inc. v. Day, 370 U.S. 478 (1962);

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

What’s true for analog-era intermediaries like

bookstores is all the more important for ISPs.

This Court recognized the importance of

appropriately calibrating contributory liability rules

for the internet in Twitter, Inc. v. Taamneh, 598 U.S.

471 (2023), and it should do so again here. To protect

countless Americans’ First Amendment interests in

access to the internet, this Court should make clear

that the knowledge and material contribution

requirements for contributory copyright liability have

real force. As such, ISPs like Cox cannot be held liable

for failing to terminate users based merely on notices

from copyright owners—which are nothing more than

untested, unverifiable allegations—absent conscious,

voluntary, and culpable participation in the

subscribers’ wrongdoing.

A contrary rule, like the Fourth Circuit’s or the

one urged by Respondents here, would lead ISPs to err

on the side of terminating contracts with their users

who are merely accused of infringement. For those

terminated, the consequences would be severe: Losing

internet access interferes with “knowing current

events, checking ads for employment, speaking and

listening in the modern public square, and otherwise

exploring the vast realms of human thought and

knowledge,” as well as the ability of “a private citizen

to make his or her voice heard”—in short, it interferes

with participating in many aspects of modern society.

Packingham v. North Carolina, 582 U.S. 98, 107

(2017); see also United States v. Eaglin, 913 F.3d 88,

91 (2d Cir. 2019) (citations omitted) (“to consign an

individual to a life virtually without access to the

Internet is to exile that individual from society”).

Many Americans do not even have a choice of ISP, and

could lose connectivity entirely and indefinitely. See

infra pp. 27–29.

Expansive secondary liability rules would create

a particularly drastic interference with First

Amendment interests when the copyright holder goes

after a transmission ISP like Cox, which does not host

speech but rather transmits it. Unlike social media

platforms or hosting providers where files are stored

accessibly on the companies’ machines, ISPs do not

store or have the ability to remove infringing files that

transit their systems. The only recourse for Cox and

other ISPs to avoid liability under plaintiffs’ proposed

rule is to terminate accounts and block customers by

Internet Protocol addresses (“IP addresses”),

which are like phone numbers for the internet.

The speech implications of that remedy are huge.

Customers accused of copyright infringement also

transmit lawful, First Amendment-protected speech.

Terminating internet access would interfere with that

speech. Moreover, IP addresses connect more people

to the internet than just the accused infringer.

Multiple unrelated users can (and routinely do) use

the same IP address.2 This is common for libraries and

schools, coffee shops and cafes, and hotels and

airports. These institutions are sources of internet

access for millions of Americans. Even for

residential accounts, the consequences of terminating

internet access would not

confined

individuals accused of repeat infringement.

Families share a single ISP account. Multi-user

accounts

are

also

common

shared

households, a growing category.

Because

shared

internet

accounts

are

commonplace, terminating an ISP customer’s

account may result in the loss of internet access for

innocent individuals who have not engaged

in any infringement. Parents’ internet access,

for example, may be terminated based on the

conduct of their children—or even their children’s

friends. A hospital that offers internet access to

dozens or even hundreds of patients and their

families could find critical access shut off.

2 Perimeter 81, Dedicated IP vs. Shared IP: Which One Should

You Use?, Check Point (May 1, 2024), https://perma.cc/6MDYDLJT (“[S]hared IPs may pose certain risks, particularly in

terms of security. If one user on the shared IP engages in

malicious activities or violates terms of service, it can potentially

affect the reputation and functionality of other users sharing the

same IP address.”).

3 Richard

Fry, More Adults Now Share Their Living Space,

Driven in Part by Parents Living with Their Adult Children, Pew

Rsch. Ctr. (Jan. 31, 2018), https://perma.cc/48KJ-J6LP.

In clarifying the scope of contributory liability,

this Court should minimize the grave harms to

protected expression that would result if ISPs were

forced to terminate users based merely on unverified

notices. To do that, the Court should apply its

approach in Taamneh here. Taamneh interpretated a

statutory provision imposing secondary liability on

another kind of internet communications company—a

social media platform. 598 U.S. at 483. Taamneh held

that an internet communications company does not

aid and abet wrongdoing absent an intention to assist

the wrongdoer in his malfeasance, as opposed to mere

indifference to that malfeasance. Under that rubric,

an ISP cannot be held secondarily liable where, as

here, it treats the wrongdoer’s uploaded content the

same way it treats the content provided by other

users. Instead, secondary liability requires conscious,

voluntary, and culpable participation in the account

holder’s wrongdoing. Id. at 492.

This Court should hold that, as in Taamneh, an

ISP cannot be held secondarily liable for conduct that

is “arm’s length, passive, and largely indifferent.” Id.

at 500. Applying Taamneh’s framework to Cox’s

conduct in this case, the Fourth Circuit erred in

imposing secondary liability without the necessary

“strong showing of assistance and scienter.” Id.

ARGUMENT

THE CONTRIBUTORY LIABILITY RULE

APPLIED BY THE FOURTH CIRCUIT

CONFLICTS WITH BASIC PRINCIPLES OF

INTERMEDIARY

LIABILITY

FOR

TRANSMITTING SPEECH.

A. Interpretation

the

Contributory Liability Standard Must

Account for Effects on Speech.

For over half a century, this Court has insisted on

safeguards to avoid chilling protected speech as a

collateral consequence of tort actions or criminal

enforcement actions that target unprotected speech.

The Court has done so by, among other things, reading

stringent scienter requirements into statutes that

impose liability for speech. See, e.g., Brandenburg v.

Ohio, 395 U.S. 444, 448–49 (1969) (per curiam)

(requiring intent to incite or produce imminent

lawless action for challenges to inflammatory

statements); N.Y. Times Co. v. Sullivan, 376 U.S. 254,

279–82 (1964) (requiring “actual malice” for

defamation claims by public officials). The Court’s

approach is particularly skeptical where, as here, laws

potentially impose liability on intermediaries for

others’ speech. Imposing liability on a speech

intermediary without a sufficiently stringent scienter

requirement, the Court has repeatedly warned, has a

chilling effect that limits both the intermediary’s and

the public’s speech rights.

In Smith v. California, 361 U.S. 147 (1959), for

example, this Court invalidated a Los Angeles

ordinance imposing strict criminal liability on a

bookstore that sold obscene books. The Court

explained that strict liability would lead booksellers

to remove from the shelves all but the few books they

could actually inspect and feel confident did not cross

the line. Id. at 153. In that scenario, “[e]very

bookseller would be placed under an obligation to

make himself aware of the contents of every book in

his shop,” and “[i]t would be altogether unreasonable

to demand so near an approach to omniscience.” Id.

(citation modified). As a result, many fewer books

would be available to the public: The “self-censorship”

compelled by the ordinance’s strict liability standard

would “affect[] the whole public,” “imped[ing]” the

“distribution of all books, both obscene and not

obscene.” Id. at 154. The result would be a “severe

limitation” on access to “constitutionally protected

matter.” Id. at 153. Notably, the Court deemed the

statute invalid because it lacked a sufficient scienter

requirement. See id. at 154.

The Court reaffirmed these principles in Manual

Enterprises, Inc. v. Day, 370 U.S. 478 (1962), where a

plurality held that magazine publishers could not be

liable under the Comstock Act for distributing

advertisements by independent photographers

offering nude photographs for sale without proof that

the publisher “knew that at least some of his

advertisers were offering to sell obscene material.” Id.

at 492 (plurality op.) (emphasis added). Liability

without proof of specific knowledge of the character of

the advertisements included in the magazine “would

as effectively ‘impose a severe limitation on the

public’s access to constitutionally protected

matter,’ . . . as would a state obscenity statute which

makes criminal the possession of obscene material

without proof of scienter.” Id. at 492–93 (quoting

Smith, 361 U.S. at 153).

In addition to imposing strict scienter

requirements, this Court has also more directly

disapproved of expansive liability for speech

intermediaries. In Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963), this Court held that a Rhode

Island commission violated the First Amendment by

threatening book distributors with liability for selling,

distributing, or displaying books to youth under the

age of 18 that the commission had deemed

“objectionable.” Id. at 61, 63–64. While the First

Amendment challenge in Bantam Books was brought

by book publishers, this Court explained that the

commission had violated the Constitution by

threatening book distributors without adequate

“procedures” in place to avoid over-broad enforcement.

Id. at 61, 66. Although the state commission in

Bantam Books had not seized or banned any books,

but only leveled accusations, the commission’s

“informal sanctions—the threat of invoking legal

sanctions and other means of coercion, persuasion,

and

intimidation”

nevertheless

suppressed

constitutionally protected speech by making book

distributors unwilling to distribute the books. Id. at

67. As a result, both minors and adults were “deprived

of the opportunity to purchase the publications” that

were not actually obscene. Id. at 71.

In the years following these decisions, the Court

continued to recognize the importance of calibrating

liability rules for speech intermediaries to avoid

incentivizing the censorship of protected along with

unprotected speech. See, e.g., Hamling v. United

States, 418 U.S. 87, 123 (1974) (obscenity prosecution

against brochure distributors was not unlawful

because the statute applied only to “knowing”

conduct); Ginsberg v. New York, 390 U.S. 629,

644 (1968) (upholding a New York obscenity

statute

and

explaining that its scienter

requirement “rests on the necessity to avoid the

hazard of self-censorship of constitutionally

protected material and to compensate for the

ambiguities

inherent

the

definition

obscenity” (citation modified)); see also Seth

Kreimer, Censorship by Proxy: The First

Amendment, Internet Intermediaries, and the

Problem of the Weakest Link, 155 U. Pa. L.

Rev. 11, 83 (2006) (collecting cases and concluding

that “[i]n the last half century, Smith has regularly

served as the basis for decisions rejecting the

imposition of liability without fault

intermediaries

who

facilitate

the

transmission of erotic materials from speaker

to listener”).

Notably, the Court has never suggested that an

intermediary can be held liable based on a history

of alleged violations by a third party. The question

has always been whether the intermediary itself

knew that the specific speech at issue was unlawful

at the time it facilitated the speech. This is a key

reason that,

for

example,

courts

have

rejected broad prohibitions on social media use

for adjudicated sex offenders instead of targeted

restrictions

their

online activities, see

Packingham, 582 U.S. at 108, as well

injunctions

against

potential

future

defamation or similar “deplatforming” remedies

in advance of a full adjudication on the merits. See,

e.g., McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir.

2015) (rejecting injunction that went beyond

exact circumstances of past defamation); Sindi

v. El-Moslimany, 896 F.3d 1, 34–35 (1st Cir. 2018)

(same); Metro. Opera Ass’n v. Local 100, Hotel Emps.

& Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d

Cir. 2001) (potential for suppression of protected

speech justifies universal rule that equity does not

enjoin a libel or slander

absent

extraordinary

circumstances);

Crosby v. Bradstreet Co., 312

F.2d 483, 485 (2d Cir. 1963) (nullifying injunction

against publication of “any” statements about a

person as a broad prior restraint void under the

First Amendment).

The concerns that have led this Court to

impose demanding scienter requirements to

govern speech intermediaries’ tort and criminal

liability

apply

equally in the context of

this

Court’s

decisions

limiting

intermediary

liability in tort and criminal cases, the Fourth

Circuit’s

rule

results

far

greater

interference with intermediaries not themselves

accused of infringement, and who merely

transport

the

allegedly

infringing

content

alongside a host of unquestionably protected

speech. Cox and other ISPs are even more removed

from infringement than, for example, the analog

intermediaries

bookstores

and

book

distributors in Bantam Books; they are more

analogous to trucking companies delivering the books.

And amici are not aware of any obscenity case in

which someone who merely delivered obscene

materials was held liable, or enjoined from

making future deliveries based on a previous

violation of the law by the party ultimately

responsible for the books. That would be the upshot

of plaintiffs’ and the Fourth Circuit’s rule, and it is

inconsistent with this Court’s First Amendment

precedents.

B. Liability For Contributory Copyright

Infringement Requires Affirmative Acts

That Constitute Conscious, Voluntary,

and Culpable Participation in a ThirdParty’s Direct Infringement of Plaintiff’s

To protect the public’s First Amendment rights,

this Court has long insisted on causation and

knowledge before imposing liability on speech

intermediaries. Copyright does not justify an

exception, especially because common law background

principles of secondary liability, which inform

secondary copyright liability, also emphasize

causation and knowledge.

Contributory copyright infringement

is an application of standard

common law concepts.

The Copyright Act does not explicitly define the

scope of secondary liability. Restatement of the Law,

The only statutory basis for contributory infringement

is §106 of the Copyright Act, which gives copyright

owners the exclusive rights “to do and to authorize”

various acts. Because the Copyright Act expressly

adopts common law principles of contributory

liability, background principles of tort liability assist

courts in identifying when acts amount to

“authorization.” Cf. Cnty. of Washington v. Gunther,

452 U.S. 161, 169 (1981) (the term “authorize” will

“ordinarily denote[] affirmative enabling action”); see

also H.R. Rep. No. 94-1476, at 61 (1976), as reprinted

in 1976 U.S.C.C.A.N. 5659, 5674 (“Use of the phrase

‘to authorize’ is intended to avoid any questions as to

the liability of contributory infringers.”); Geophysical

Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d

785, 799 (5th Cir. 2017) (“[T]he term ‘to authorize’ in

§ 106 of the Copyright Act was not intended to give

rise to a protectable right of authorization in copyright

holders, but rather to invoke the pre-existing doctrine

of contributory liability.”) (citation omitted). When

courts interpret secondary liability rules for copyright,

they should use those background principles, rather

than creating special copyright-specific rules not

provided for in the statute. Cf. eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 392–93 (2006)

(invoking background equitable principles for

interpreting copyright and patent acts). 4

Taamneh provides the proper model.

To align secondary copyright liability principles

with the common law, this Court does not need to

write on a blank slate. The contributory liability

imposed here was aiding-and-abetting liability, just

as was asserted in Taamneh. See Pet. App. at 26a–

28a; see also Global-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 754, 764 (2011) (explaining, in the patent

context, that contributory infringement is “the aiding

and abetting of direct infringement by another

4 Lower courts, including the Fourth Circuit here, have

sometimes improperly created special rules that relax the

requirements for contributory copyright liability, abandoning

background principles requiring specific knowledge and

sufficiently fine-grained control. See Mark Bartholomew & John

Tehranian, The Secret Life of Legal Doctrine: The Divergent

Evolution of Secondary Liability in Trademark and Copyright

Law, 121 Berkeley Tech. L.J. 1363, 1388–89, 1391–94 (2006)

(discussing lowered standards for control and material

contribution in copyright compared to trademark law).

party”). And Taamneh, for its part, expressly drew on

the common law to set out the metes and bounds of

secondary liability. Taamneh, 598 U.S. at 484 (aiding

and abetting liability, “familiar to the common law,”

must be understood “in context of the common-law

tradition from which it arose”).

The Fourth Circuit’s approach below subjects

ISPs like Cox to potential liability for all acts of

subscribers whenever the copyright owner or its agent

has sent repeat notices alleging past instances of

infringement by those subscribers. Pet. App. at 10a–

12a. This rule cannot be reconciled with Taamneh. In

that case, this Court relied on established common

law principles to reject a rule that “would effectively

hold any sort of communication provider liable for any

sort of wrongdoing merely for knowing that the

wrongdoers were using its services and failing to stop

them.” 598 U.S. at 503. Instead, the Taamneh Court

unanimously held that an internet social media

platform is not secondarily liable for unlawful

material posted to the platform by an account holder

unless the plaintiff demonstrates the platform’s

conscious, voluntary, and culpable participation in the

account holder’s wrongdoing.

In Taamneh, the families of victims of a terrorist

attack sued three social media companies, claiming

that the companies’ hosting and promotion of proterrorist content contributed to the attack. The

lawsuit was brought pursuant to the Justice Against

Sponsors of Terrorism Act (“JASTA”), 18

U.S.C. §2333(d)(2). JASTA imposes secondary civil

liability on anyone “who aids and abets, by knowingly

providing substantial assistance, or who conspires

with the person who committed such an act of

international terrorism.” Id. The statute specifically

refers to Halberstam v. Welch, 705 F.2d 472 (D.C.

Cir. 1983), as the test for “substantial assistance.”

JASTA, § 2(a)(5). Halberstam, in turn, synthesizes

common law principles of secondary liability. 5

Under Halberstam’s distillation of the common

law approach to secondary liability, a plaintiff must

show (1) the existence of a wrongful act, (2) the

defendant’s general awareness that it is playing a role

in a broader wrongful enterprise, and (3) that the

defendant knowingly and substantially assisted the

principal violation. Taamneh, 598 U.S. at 486–88.

Halberstam includes six nonexclusive factors to help

determine whether a defendant’s assistance was

“substantial”: (1) “the nature of the act assisted,”

(2) the “amount of assistance” provided, (3) whether

the defendant was “present at the time” of the

principal tort, (4) the defendant’s “relation to the

tortious actor,” (5) the “defendant’s state of mind,” and

(6) the “duration of the assistance” given. Halberstam,

705 F.2d at 488–89 (emphasis omitted).

Based on these principles, this Court held in

Taamneh that the social media companies were not

contributorily liable under JASTA. The plaintiffs had

claimed that ISIS was active on defendants’ socialmedia platforms, which are generally available to the

internet-using public with little to no front-end

screening

defendants;

that

defendants’

recommendation algorithms matched ISIS-related

The rules governing contributory copyright infringement

liability are likewise judge-made. Sony Corp. of Am. v. Universal

City Studios, Inc., 464 U.S. 417, 434–35 (1984).

content to users most likely to be interested in that

content; and that defendants allegedly knew that ISIS

was uploading this content to such effect, but took

insufficient steps to ensure that ISIS supporters and

ISIS-related content were removed from their

platforms. Id. at 498.

Taamneh concluded these allegations did not

support liability because “[t]he “mere creation” of

social-media platforms that are generally available to

the internet-using public without “front-end

screening” does not justify imposing secondary

liability, even if the platforms know that bad actors

are using their services. Id. at 499. This Court

emphasized that aiding-and-abetting liability is

“inherently a rule of secondary liability for specific

wrongful acts,” not a free-floating duty to deter

wrongdoing in general. Id. at 494 (cleaned up).

Liability falls only on those who abetted the

underlying tort “through conscious, ‘culpable

conduct.’ ” Id. at 492 (emphasis added), citing Camp

v. Dema, 948 F.2d 455, 460 (8th Cir. 1991). But the

platforms’ relationship to the terrorist group and their

audience looked like their relationship to “their

billion-plus other users: arm’s length, passive, and

largely indifferent.” Taamneh, 598 U.S. at 500. The

Court emphasized that the complaint boiled down to

a failure to stop ISIS from using generally available

services, not actions that “culpably associated” the

companies with criminal activity. Id. at 504. The

complaint alleged, at most, “passive nonfeasance”—

i.e., failing to remove terrorist content from generally

available platforms despite their awareness of it. Id.

at 500. There were no allegations that defendants

intentionally provided substantial aid to the terrorist

attack, consciously participated in it, gave “special

treatment” or encouragement to its perpetrators, or

otherwise offered targeted, knowing assistance that

materially advanced that specific act. Id. at 499–501,

507.

Importantly, Taamneh confirms that where

allegations rest on acts of ostensible passive

nonfeasance, plaintiffs must make a strong showing of

assistance and scienter. Id. This strong scienter

element is required not only in order to protect First

Amendment interests, but also because “tort law

imposes liability only when someone commits an

actual tort,” id. at 494. Without those stringent

limitations, Taamneh recognized, “aiding-andabetting liability could sweep in innocent

bystanders as well as those who gave only tangential

assistance.” Id. at 488.

Taamneh’s principles are entirely compatible

with the standards of liability for inducing copyright

infringement set out in Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

Grokster reaffirmed that copyright law does not

impose “secondary liability based on presuming or

imputing intent to cause infringement solely from the

design or distribution of a product capable of

substantial lawful use, which the distributor knows is

in fact used for infringement.” Id. at 933. However,

where a provider goes beyond inaction to “statements

or actions directed to promoting infringement,” it can

be contributorily liable. Id. at 935. But that was true

only because there, defendants’ “unlawful objective

[was] unmistakable.”

Id.

916.

Cox’s

unwillingness to disconnect internet access for

an entire household based on accusations of

infringement is not the same as purposeful, overt

encouragement of infringement.

C. Cox’s Mere Failure to Terminate

Customers

Based

Plaintiffs’

Allegations of Repeat Infringement Do

Not Meet This Court’s Standard For

Contributory Liability.

1. Merely

continuing

provide

“infrastructure” to someone engaged

in wrongdoing is not an “affirmative

act” demonstrating the requisite

culpable participation.

The same result as in Taamneh should obtain

here. Like the social media platform defendants in

that case, Cox provides internet service to the public

at large in the same manner as it does to infringers—

indifferently and passively. It treats infringing and

non-infringing content, and all of its users regardless

of what they transmit, with equal disregard. It does

no front-end screening, and has no duty to do so. In

fact, the Copyright Act specifically states that Cox,

like any ISP, has no duty to make any affirmative

investigation to discover infringement or to confirm

allegations regarding its customers’ alleged

infringement. See 17 U.S.C. § 512(m) (safe harbor is

not conditioned on “a service provider monitoring its

service or affirmatively seeking facts indicating

infringing activity”).

Like the defendants in Taamneh, Cox may not

have taken sufficient steps to prevent transmission of

infringing content. But Cox’s passive nonfeasance

does not support secondary liability under Taamneh’s

implementation of the Halberstam test or the common

law’s traditional requirements for secondary liability.

Sending and receiving communications over the

internet, including over BitTorrent—which is what

Cox’s customers were evidently doing—is not

obviously illegal, nor is past online behavior a

guarantee of future infringement.

As a consequence, plaintiffs cannot fulfill the

demanding scienter requirement that Taamneh

applies to inaction. All plaintiffs can show is that Cox

was aware of allegations, and that it failed to take the

action—terminating the internet accounts of alleged

repeat infringers—that the copyright owners

demanded. That is not enough. As this Court said in

Taamneh, “bad actors” might use “the internet

generally” to “sometimes terrible” ends. 598 U.S. at

499. Nevertheless, “we generally do not think that

internet or cell service providers incur culpability

merely for providing their services to the public writ

large.” Id. (emphasis added).

As in Taamneh, Cox runs an enormous network

that allows millions of people “to upload vast

quantities of information on a daily basis.” Id. at 500.

And, as in Taamneh, there is no allegation that Cox

treated the allegedly infringing transmissions

differently from any other traffic sent over its

network. Id. Like the defendants in Taamneh, Cox is

essentially a bystander. “Such allegations do not state

a claim for culpable assistance[.]” Id.

In fact, holding Cox secondarily liable is arguably

even less appropriate than assigning liability in

Taamneh would have been. The defendants there

offered more assistance than Cox did here: As alleged

in the complaint, the Taamneh defendants’

algorithms recommended terrorism-related content to

interested users. In contrast, Cox does not promote

infringing content in any way. But in both cases, the

alleged wrongful act is exactly the same: passivity and

indifference.

To impose aiding-and-abetting liability for

passive nonfeasance, plaintiffs must make a “strong

showing of assistance and scienter.” Taamneh, 598

U.S. at 500 (emphasis added). According to plaintiffs,

Cox simply ignored their notices and failed to

terminate users accused of infringing. First Am.

Compl. and Jury Demand, Sony Music Ent. v. Cox

Commc’ns, Inc., No. 18-cv-950, 2019 WL 7878711,

¶ 10 (E.D. Va. Apr. 8, 2019). Plaintiffs here did not file

suit against the individual account holders they

demanded Cox punish, preferring instead to rest on

their unverified accusations and demand that Cox

terminate customer accounts without proof of

underlying wrongdoing. This does not meet the

scienter requirement for contributory liability under

Halberstam or Taamneh.

Given

the

context—transitory

network communications—Cox is

technologically unable to verify

allegations of infringement.

Strengthening the case for reversal, it is virtually

impossible for Cox and other ISPs to investigate the

alleged infringement at the heart of this case. The

contributory infringement claims against Cox here

involve

allegedly

infringing

transitory

communications—emails

other

transmissions like BitTorrent traffic—sent by Cox’s

customers over its network. Unlike in the case of

customers

ISP’s

servers,

communications

are

ephemeral.

After

transit the ISP’s network, they are gone.

these

they

As a consequence, ISPs that receive notices

from copyright owners alleging that a customer’s

past

transitory network communications are

infringing are in a particularly difficult position. The

course of conduct that the ISP must take. In fact,

the notices sent by the copyright owners to Cox

have no basis in the Copyright Act. Section 512

of the Act, 17 U.S.C. § 512, contains no provision

authorizing copyright owners to send

notices

relating

transitory

network

communications; nor, unlike in the case of notice

sent relating to allegedly infringing material hosted

on an ISP’s servers, 17 U.S.C. § 512(c), or

allegedly infringing links maintained by the ISP,

17 U.S.C. § 512(d), does the statute contain any

requirement that Cox or any other ISP “take down”

any transitory network communication that is the

subject of a notice. And indeed, such a requirement

would be nonsensical, because in the case of

transitory network communications like those at

issue in this case, there is nothing available for the

ISP to “take down.”

Crucially,

the

owners’

extrastatutory notices are not proof that any

particular

Cox

subscriber has infringed a

allegations

that

infringing

communications

associated

with

particular

address

transited the ISP’s network at a certain date and

time. Moreover, because the communications

referenced in the notices are not available to the ISP

—in the ordinary case, they have transited the

network and are gone—the copyright owner’s

allegations

cannot

confirmed,

meaningfully held up to scrutiny.

even

The ISPs inability to confirm or rebut copyright

owners’ infringement allegations for transitory

network communications means that secondary

liability in this context should be particularly

narrowly drawn. The Fourth Circuit held that Cox

had continued to provide internet access “with

knowledge that [its] subscribers are infringing” and

that doing so “is consistent with at least reckless

disregard for the copyright holder’s rights” and

therefore “is willful.” BMG Rts. Mgmt. LLC v. Cox

Commc’ns, Inc., 881 F.3d 293, 312–13 (2018). But

secondary liability for copyright infringement,

including contributory liability, requires actual proof

of an underlying act of direct infringement.

Restatement of the Law, Copyright, Tentative Draft

No. 5 § 8.01, Comment c; Cf. Venegas-Hernández v.

Peer, 424 F.3d 50, 57–59 (1st Cir. 2005) (music

publisher not liable for unauthorized grant of license

to a third party to perform or reproduce copyrighted

work when “there was no proof that the songs had

been copied or performed under the mistaken

licenses.”). A third party’s allegations of copyright

infringement—even repeat allegations—are not proof.

This is especially true given that many of the

notices sent to ISPs by copyright owners and their

agents are automatically generated, without any

evidence (or claim) of human review. Jennifer M.

Urban, Joe Karaganis & Brianna L. Schofield, Notice

and Takedown in Everyday Practice 2 (March 22,

2017), https://perma.cc/J5G8-J55J (“Urban, et al.”)

(describing the authors’ quantitative analysis of

machine-generated notices). There have long been

concerns with the reliability of machine-generated

infringement notices. One is that machines cannot

check the context of a use to distinguish between

legitimate infringement and non-infringing uses (such

as a licensed or fair use). Another is that machinegenerated notices often contain errors. One recent

study examining a sample of more than 3 million

notices generated between 2011 and 2015 found that

at least 5.5% of the notices were missing descriptions

of the copyrighted work alleged to be infringed. In

addition, at least 9.8% of the takedown notices either

failed to include a takedown request or misidentified

the allegedly infringing site or provided an inactive

URL in the takedown requests. Daniel Seng,

Copyrighting Copywrongs: An Empirical Analysis of

Errors with Automated DMCA Takedown Notices, 37

Santa Clara High Tech. L. J. 119 (2021) (“Seng

study”). In other words, out of the sample of 3 million

notices, nearly half a million files and webpages would

have been wrongfully removed if these takedown

requests were treated as gospel. Applied to Cox or any

transmission ISP, the accounts of half a million people

could have been terminated based on a variety of

errors.

Another study looking at a random sample of

DMCA takedown notices sent during a six-month

period in 2013 found a high error rate in the notices

generated by the automated notice-sending systems

increasingly used by rights-holders. See Urban, et al.

at 2. Analysis of that sample reveals that 4.2% of the

requests “were fundamentally flawed because they

targeted content that clearly did not match the

identified infringed work.” Id. at 11. Additionally, over

28% of the notices had other characteristics raising

concern about the validity of the claim. Over 6%

targeted content with potential fair use defenses. Id.

at 12. Many others led to dynamic results or

aggregator pages that made identifying the targeted

content difficult. Id. at 11. The rise of notices

generated by artificial intelligence promises to make

the situation worse. See Emanuel Maiberg, How

OnlyFans Piracy is Ruining the Internet for Everyone,

404 Media (Sep. 1, 2025), https://perma.cc/WT5W4WHW.

Researchers have also documented many

instances of abusive notices. According to one survey,

“[n]early every OSP [online service provider;

equivalent to ISP] recounted stories of deliberate

gaming of the DMCA takedown process.” Urban, et al.

at 40. Abusive DMCA notices appeared targeted to

“harass competitors, to resolve personal disputes, to

silence critics, or to threaten the OSP or damage its

relationship with its users.” Id. Often, they even

“ignored fair use defenses” or “targeted non-infringing

material,” with the goal only of “remov[ing] content

considered undesirable to the filer.” Id.

Consider, for example, copyright notices intended

not to enforce copyright, but rather for purposes of

“reputation management”—i.e., targeting critics. One

investigation, for example, found that many DMCA

takedown notices were directed at removing

unfavorable news articles about the alleged criminal

activities of a group of Russian businessmen. See

Lumen Database Team, Over Thirty Thousand DMCA

Notices Reveal an Organized Attempt to Abuse

https://perma.cc/846G-3N7J. See also Glyn Moody,

How Backdated Articles Abuse the DMCA’s Takedown

System to Remove Legitimate News Items, Walled

Culture (May 17, 2022), https://perma.cc/CK2EHYNV; DOJ Orders doTerra Distributors to Pay

$15,000 Each after TINA.org Complaint, Truth In

Advertising (Jan. 30, 2023), https://perma.cc/NJC5MBUR (recounting abuse of DMCA to silence critics).

Or consider DMCA notices improperly issued in

order to harm competitors. As a representative for the

online marketplace Etsy explained, attackers will

send multiple notices in rapid succession, then

demand that users be terminated as “repeat

infringers.” Tr. of Section 512 Pub. Roundtable 240:8–

17, U.S. Copyright Off. Section 512 Study (May 3,

2016), https://perma.cc/CVJ9-UXAC. One group of

fraudulent claims resulted in the removal of over

100,000 businesses’ websites, costing millions of

dollars and thousands of hours in lost employee time.

Lex Lumina, Lex Lumina Files Suit on Behalf of

Google Against DMCA Fraudsters, Lex Lumina LLP

(Nov. 14, 2023), https://perma.cc/262K-QFFK.

Another report documents the fraudulent use of

DMCA notices targeted at e-commerce platform

Shopify. Glyn Moody, How the DMCA is Being

Weaponized Against E-Commerce Sites, Techdirt

(Nov.

20,

2023),

https://perma.cc/8RCB-L4D9.

Likewise, Amazon has explained that half of the

takedown notices sent to Kindle Direct are from

competitors trying to suppress competition. Statement

of Professor Rebecca Tushnet on “The Digital

Millennium Copyright Act at 22: What is it, why was

it enacted, and where are we now?” 10, U.S. Senate,

Comm. on the Judiciary Subcomm. on Intell. Prop.

(Feb. 11, 2020), https://perma.cc/494P-LXNL.

It is worth emphasizing that most of the notices

that have been studied were produced in the context

of allegedly infringing content hosted (i.e., stored at

the customer’s instance) by ISPs. It is more difficult to

study the error rate in notices that relate to transitory

network communications, because, as noted earlier, in

the ordinary case neither the ISP nor anyone else has

access to the impugned content by the time the notice

is received. This makes the concerns about mistaken

or abusive notices, if anything, even greater for

transitory network communications: a critic or rival of

a copyright holder could lose internet access entirely

based on inaccurate, incomplete, or abusive

accusations of use of an internet connection to

infringe,

with

means

after-the-fact

substantiation.

Indeed, “every motion picture studio and record

label has been accused of copyright infringement at

least three times, and I bet they would not like to have

their internet services terminated . . . . [I]f accusation

makes somebody an infringer, then most of the major

standard. That can’t be the case.” Tr. of Section 512

Study 296:6–12, U.S. Copyright Off. Section 512

Public

Roundtable

(May

12,

2016),

https://perma.cc/A2AR-24NV. Many large companies

that produce copyrighted content have also defended

themselves against, and lost, at least one copyright

infringement lawsuit in the past. 6 So has President

6 See,

e.g., Andy Warhol Found. for the Visual Arts, Inc. v.

Goldsmith, 598 U.S. 508 (2023) (magazine); Petrella v. MetroGoldwyn-Mayer, Inc., 572 U.S. 663 (2014) (studio); N.Y. Times

Trump’s campaign. 7 Under the Fourth Circuit’s

backwards-looking logic, their service providers

should all refuse service to them in case they continue

to infringe.

The consequences for ISP customers

whose accounts are terminated are

very severe.

Weighed against the serious proof problems

associated with Respondents’ unsubstantiated

allegations, the consequences they demand—an ISP

terminating a customer based on a copyright holder’s

allegations—are very severe. This flouts the balancing

approach of the background law of aiding and

abetting.

Given the lack of ISP competition for many

Americans, termination from an ISP can amount to

losing access to the internet. Nationwide, more than

70 million people—over 20% of the U.S. population—

have access to just one provider of fixed-line

Co., Inc. v. Tasini, 533 U.S. 483 (2001) (publisher and database

provider); Stewart v. Abend, 495 U.S. 207 (1990) (television

network); Harper & Row Publishers, Inc. v. Nation Enters., 471

U.S. 539 (1985) (magazine); Ringgold v. Black Ent. Television,

Inc., 126 F.3d 70, 74 (2d Cir. 1997) (television network); Frank

Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505 (9th

Cir. 1985) (studio-owned hotel); Roy Export Co. v. Columbia

Broadcasting Co., 672 F.2d 1095 (2d Cir. 1982) (television

network); Columbia Pictures Indus., Inc. v. Miramax Films

Corp., 11 F. Supp. 2d 1179 (C.D. Cal. 1998) (studio); Woods v.

Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1996)

(studio).

7 See, e.g., Grant v. Trump, 749 F. Supp. 3d 423 (S.D.N.Y. 2024);

Isaac Hayes Enters., LLC v. Trump,

2024 WL 4148758 (N.D. Ga. Sep. 11, 2024).

No.

24-cv-3639,

broadband home internet access. H. Trostle &

Christopher Mitchell, Profiles of Monopoly: Big Cable

and Telecom 39, Inst. for Loc. Self-Reliance

(Aug. 2020), https://perma.cc/SK68-GPR3. For all of

these people, termination by a single ISP means loss

of broadband internet access entirely. Likewise,

terminating a student’s access to the university

network is “tantamount to expelling them from the

university.” Tr. of Section 512 Pub. Roundtable 287:9–

11, U.S. Copyright Off. Section 512 Study (May 12,

2016), https://perma.cc/A2AR-24NV. 8

This makes termination by an ISP in response to

notices sent regarding a customer’s transitory

network communications entirely different—and

likely much more disruptive to the customer’s life—

than, for example, terminating a particular service,

such as a social media platform terminating a

customer’s social media account as a result of the

content they have uploaded, as in Taamneh. And the

weighty consequences of termination sharply

8 Mobile broadband is, at best, an incomplete substitute for fixed-

wire broadband. Fed. Commc’ns Comm’n., 2020 Broadband

Deployment Rep. ¶ 12, 35 F.C.C. Rcd. 8986 (June 24, 2020),

https://perma.cc/37CX-TBDW. Among other problems, most

mobile broadband plans feature monthly data caps that users

quickly exceed if they use mobile data for necessary day-to-day

functions, such as telecommuting or remote education. See Stan

Horaczek, Here’s How Much Internet Bandwidth You Actually

Need to Work from Home, Popular Sci. (Mar. 12, 2020),

https://perma.cc/8TJA-QDGB; Todd Haselton, Your Phone’s

Unlimited Data Plan Isn’t Really Unlimited—This is What You

Really Get, CNBC (July 14, 2018), https://perma.cc/WMX5-M865.

The overcharges that mobile broadband users accrue when they

exceed data caps makes mobile broadband untenable for most

users as a primary broadband connection to the internet.

distinguish ISPs’ role in alleged infringement from

that of “[l]ending a friend a hammer . . . with

knowledge that the friend will use it to break into a

credit union ATM,” Pet. App. at 27a. It is more like

providing shoes—a basic requirement for much of

ordinary life—to a person who has, in the past, been

accused of running from the scene of a crime. That is,

the nature of the assistance—a basic tool necessary to

a huge amount of legitimate conduct versus a tool

suited to do damage–is sharply different in ways that

the court below dismissed but that are vitally

important.

II. THE FOURTH CIRCUIT’S OVERLY BROAD

INTERPRETATION OF THE WILLFULNESS

TEST AS APPLIED TO ISPS WILL

FURTHER RESULT IN THE SUPPRESSION

OF LAWFUL SPEECH.

The Fourth Circuit’s definition of willful

secondary infringement was also wrong. Section

504(c)(2) of the Copyright Act provides that “[i]n a case

where the copyright owner sustains the burden of

proving, and the court finds, that infringement was

committed willfully, the court in its discretion may

increase the award of statutory damages to a sum of

not more than $150,000.” 17 U.S.C. § 504(c)(2). The

Congress intended to limit enhanced statutory

damages for willful infringement to exceptional cases.

See H.R. Rep. No. 94-1476, at 162–63 (“Clause (2) of

section 504(c) provides for exceptional cases in which

the maximum award of statutory damages could be

raised from $10,000 to $50,000 [now, from $30,000 to

$150,000].”).

The Fourth Circuit based its holding that Cox was

a willful contributory infringer on Cox’s (supposed)

knowledge of its subscribers’ infringement. In its

telling, “[c]ontributorily (or vicariously) infringing

with knowledge that one’s subscribers are infringing is

consistent with at least reckless disregard for the

BMG Rts. Mgmt., 881 F.3d at 312–13 (emphasis

added). This was error. Cox neither knew that the

challenged subscribers were infringing copyrights nor

that its own role as a passive internet conduit would

ultimately be held by the Fourth Circuit to be

contributory infringement. 9

As noted above, the contributory copyright

infringement claims against Cox involve transitory

communications sent by Cox’s customers over its

network, and for an ISP like Cox to be secondarily

liable for the copyright infringement of its customers,

it must possess proof of underlying direct

infringement. See supra, at 22. Courts should be very

9 In intellectual property cases, it is well established that the

required state of mind is not merely awareness of the conduct but

awareness of the illegality of the conduct, because the mere act

of, say, sending an email or internet post, without more, is not an

obviously culpable act. See, e.g., Grokster, 545 U.S. at 933

(requiring a purpose to promote infringement for inducement

liability); Aro Mfg. Co. v. Convertible Top Replacement Co., 377

U. S. 476, 488 (1964) (requiring proof of knowledge that the

conduct was infringing for contributory infringement liability; “a

violator of § 271(c) must know “that the combination for which

his component was especially designed was both patented and

infringing”); Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S.

754 (2011) (in patent law, “we now hold that induced

infringement under §271(b) requires knowledge that the induced

acts constitute patent infringement”).

cautious in determining willfulness in this context.

For reasons set forth above, see supra at 20–27,

notices sent by copyright owners that allege

infringement—even repeated notices—are not proof of

infringement, much less proof that more infringement

will occur in the future. And so, in declining to

terminate customers based on unproven allegations,

an ISP like Cox is not exhibiting any sort of deliberate

disregard of the copyright holder’s rights. Rather, the

ISP is engaged in reasonable interest-balancing: The

balanced, at very least, against the speech interests of

the ISP’s customers, the speech interests of others not

accused of wrongdoing who use the customer’s IP

address to access the internet, and the due process

interests of the ISP’s customers in not having their

internet access terminated without proof of

wrongdoing.

In light of these competing interests, there was no

basis for the Fourth Circuit to hold that Cox either

was aware of or willfully blind to the fact that its own

conduct was infringing. 10 This is not a case like

Grokster, 545 U.S. at 933, where a network operator

10 As others who have considered the question have recognized,

willfulness in this context entails knowledge that one’s own

conduct constitutes an infringement. See RCA/Ariola Int’l,

Inc. v. Thomas & Grayston Co., 845 F.2d 773, 779 (8th Cir. 1988)

(retailers cannot be held to be willful contributory infringers

based on knowledge that purchasers of cassette duplication

services were directly infringing: such knowledge “does not show

that the [retailers’] employees understood their own actions to be

culpable”); Melville B. Nimmer & David Nimmer, 3 Nimmer On

must be done “with knowledge that [one’s] conduct constitutes

has gone beyond inaction to “statements or actions

directed to promoting infringement.” In such cases,

the imposition of statutory damages for willful

there is no allegation that Cox explicitly or implicitly

marketed its service as being particularly useful for

infringers or encouraged subscribers to use Cox’s

internet service to infringe.

In short, given the appropriately narrow scope of

secondary liability under Taamneh and longstanding

common law principles, the Fourth Circuit erred when

it imposed willfulness damages in a case that involves

only passive inaction in response to customer activity

that was not facially unlawful, was only alleged to be

unlawful, and where Cox had no opportunity or

capability to verify the allegations. That faulty legal

conclusion

carries

particularly

troubling

consequences because Cox is an intermediary for the

online speech of vast numbers of Americans, and

imposing overly broad secondary copyright liability

endangers their First Amendment rights.

CONCLUSION

For the foregoing reasons, this Court should

reverse the decision below.

Respectfully submitted,

Jennifer Granick

Rebecca Tushnet

Evelyn Danforth-Scott

Counsel of Record

Mark Lemley

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES Christopher J. Sprigman

UNION FOUNDATION

LEX LUMINA LLP

425 California Street

745 Fifth Avenue

Suite 700

Suite 500

San Francisco, CA 94104 New York, NY 10151

(703) 593-6759

Eden B. Heilman

rtushnet@lex-lumina.com

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF Samir Jain

VIRGINIA

Kate Ruane

1401 K St NW #200

CENTER FOR DEMOCRACY

Washington, DC 20005

AND TECHNOLOGY

529

1401 K St NW

Washington, DC 20005

Counsel for Amici American Civil Liberties Union,

American Civil Liberties Union of Virginia, and

Center for Democracy and Technology

Dated: September 5, 2025

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.