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

Supreme Court briefSep 5, 2025

Ask Donna

What actually matters in this document.

Text

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 Court of Appeals for the Fourth Circuit

BRIEF FOR JOSHUA MOON AND

THE UNITED STATES INTERNET

PRESERVATION SOCIETY AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Nathaniel M. Lindzen

The Law Office of

Nathaniel M. Lindzen

57 School Street

Wayland, MA 01778

(212) 810-7627

nlindzen@corpfraudlaw.com

Matthew D. Hardin

Counsel of Record

Hardin Law Office

101 Rainbow Drive, #11506

Livingston, TX 77399

(202) 802-1948

MatthewDHardin@

protonmail.com

Counsel for Amici Curiae Joshua Moon

and United States Internet Preservation Society

120612

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

INTRODUCTION AND

SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . 3

ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The “knowledge” standard articulated in

Grokster was neither clear nor faithfully followed

by lower courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Given the failure of courts to provide working

definitions of “knowledge” it is unsurprising that

Congress was forced to step in with the Digital

Millenium Copyright Act of 1998. . . . . . . . . . . . 10

The DMCA has become the default means of

dealing with potential secondary copyright

infringement, but this has come at high costs to

fair use and otherwise impinges on U.S. policy

including the very policy behind the DMCA. . . 11

Reformation of the knowledge standard is

essential and fair. . . . . . . . . . . . . . . . . . . . . . . . . . 19

At a minimum, this Court should implement the

“actual knowledge” standard as recently defined

in Intel Corp. Inv. Pol’y Comm. v. Sulyma, 589

U.S. 178 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Table of Contents

Page

At a minimum, this Court should introduce

a firm scienter requirement as defined in

Twitter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Am. Soc’y for Testing & Materials v. Public.

Resource.Org, Inc.,

82 F.4th 1262 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . 11

Arista Recs., LLC v. Doe 3,

604 F.3d 110 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 8

BMG Rts. Mgmt. (US) LLC v. Altice USA, Inc.,

No. 2:22-CV-00471-JRG, 2023 WL 3436089

(E.D. Tex. May 12, 2023) . . . . . . . . . . . . . . . . . . . . . . . 8

BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns,

Inc.,

881 F.3d 293 (4th Cir. 2018) . . . . . . . . . . . . . . . . . . 8, 22

Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Capitol Recs., LLC v. Vimeo, LLC,

826 F.3d 78 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . 11

Cariou v. Prince,

714 F.3d 694 (2d Cir. 2013), holding modified by

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

Goldsmith, 992 F.3d 99 (2d Cir. 2021), and holding

modified by Andy Warhol Found. for Visual Arts,

Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021) . . . . . . 21

Cited Authorities

Page

Cariou v. Prince,

784 F. Supp. 2d 337 (S.D.N.Y. 2011),

judgment rev’d in part, vacated in part,

714 F.3d 694 (2d Cir. 2013) . . . . . . . . . . . . . . . . . . 20, 21

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CoStar Grp., Inc. v. LoopNet, Inc.,

373 F.3d 544 (4th Cir. 2004) . . . . . . . . . . . . . . . . . 10, 25

Dekalb Cnty. Pension Fund v. Transocean Ltd.,

817 F.3d 393 (2d Cir. 2016), as amended

(Apr. 29, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Doe v. GTE Corp.,

347 F.3d 655 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 3

Eldred v. Ashcroft,

537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Elsevier Ltd. v. Chitika, Inc.,

826 F. Supp. 2d 398 (D. Mass. 2011) . . . . . . . . . . . . . . 9

Enttech Media Grp. LLC v. Okularity, Inc.,

No. 220CV06298RGKEX, 2020 WL 6888722

(C.D. Cal. Oct. 2, 2020) . . . . . . . . . . . . . . . . . . . . . . . . 13

Cited Authorities

Page

Erickson Prods., Inc. v. Kast,

921 F.3d 822 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 8

Fox Film Corp. v. Doyal,

286 U.S. 123 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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

545 U.S. 913 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Halberstam v. Welch,

705 F.2d 472 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . 24

Hernandez v. Mesa,

140 S. Ct. 735 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

In re Aimster Copyright Litig.,

334 F.3d 643 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 24

In re Frontier Commc’ns Corp.,

658 B.R. 277 (Bankr. S.D.N.Y. 2024) . . . . . . . . . . 9, 11

Intel Corp. Inv. Pol’y Comm. v. Sulyma,

589 U.S. 178 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

Cited Authorities

Page

Kalem Co. v. Harper Bros.,

222 U.S. 55 (1911) . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 21

Lenz v. Universal Music Corp.,

137 S. Ct. 416 (2016) (Cert. Denied) . . . . . . . . . . . . . 16

Louis Vuitton Malletier, S.A. v. Akanoc

Solutions, Inc.,

658 F.3d 936 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . 8, 22

Luvdarts, LLC v. AT & T Mobility, LLC,

710 F.3d 1068 (9th Cir. 2013) . . . . . . . . . . . . . . . . . 8, 22

Moon v. Greer,

144 S. Ct. 2521 (2024) (cert. denied) . . . . . . . . . 1, 2, 14

New York Times Co. v. Microsoft Corp.,

777 F. Supp. 3d 283 (S.D.N.Y. 2025) . . . . . . . . . . . . . 25

Perfect 10, Inc. v. Google, Inc.,

No. CV 04-9484 AHM SHX, 2010 WL 9479060

(C.D. Cal. July 30, 2010), aff’d, 653 F.3d 976

(9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Perfect 10, Inc. v. Visa Int’l Serv. Ass’n,

494 F.3d 788 (9th Cir. 2007) . . . . . . . . . . . . . . . . . 12, 22

Religious Tech. Ctr. v. Netcom On-Line

Commc’n Servs., Inc.,

907 F. Supp. 1361 (N.D. Cal. 1995) . . . . . . . . . . . 10, 25

vii

Cited Authorities

Page

Schneider v. YouTube, LLC,

674 F. Supp. 3d 704 (N.D. Cal. 2023) . . . . 14, 15, 17, 20

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

Inc.,

464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7

Sony Music Ent. v. Cox Commc’ns, Inc.,

464 F. Supp. 3d 795 (E.D. Va. 2020),

aff’d in part, vacated in part, rev’d in part,

93 F.4th 222 (4th Cir. 2024) . . . . . . . . . . . . . . 17, 20, 22

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) . . . . . . . . . . . . . . . . . . . . . . 7, 20, 24

UMG Recordings, Inc. v. Shelter Cap. Partners

LLC,

718 F.3d 1006 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 9

United States v. Paramount Pictures,

334 U.S. 131 (1948) . . . . . . . . . . . . . . . . . . . . . . . . 18, 23

United States v. Santos-Portillo,

997 F.3d 159 (4th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 3

Ventura Content, Ltd. v. Motherless, Inc.,

885 F.3d 597 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 9

White-Smith Music Pub. Co. v. Apollo Co.,

209 U.S. 1 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

viii

Cited Authorities

Page

STATUTES

17 U.S.C. § 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

17 U.S.C. § 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 23

17 U.S.C. §§ 101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REGULATIONS

Exec. Order No. 14179, 90 C.F.R. 8741 (2025) . . . . . . . . 25

OTHER AUTHORITIES

Brief of Amici Curiae Automattic, Inc., Google, Inc.,

Twitter, Inc., and Tumblr, Inc., Supporting

Petition for Rehearing En Banc, available at

www.scotusblog.com/wp-content/uploads/2016/

0 9 / 16 - 2 17- c e r t - a m i c u s - a ut o m a t t i c .p d f

(last electronically accessed on Aug. 18, 2025) . . . . . .

Chris Sprigman & Mark Lemley, Why

Notice-and-Takedown is a bit of

LA Times . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Corynne McSherry, Notice and Takedown

Me c h a n i s m s : R i s k s f o r F r e e d o m o f

Expression Online, Electronic Frontier

Fou nd at ion (2 0 2 0), ava i l able at w w w.

eff.org /f iles/2020/09/04 /mcsherr y _

statement_re_copyright_9.7.2020-final.pdf

(last electronically accessed on Aug. 18, 2025) . . . . 16

Cited Authorities

Page

Electronic Frontier Foundations, “Takedown

Hall of Shame” a regularly updated website

cataloguing the most egregious and recent

example of improper issuance of DMCA

takedown notices. Available electronically at

https://www.eff.org/takedowns (last accessed

on Aug. 17, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Emily Zarinst, Notice Versus Knowledge

Under the Digital Millennium

92 California Law Review 257 (2004) . . . . . . . . . . . . 14

Google, Transparency Repor t, Aug ust 18,

2025, available electronically at https://

transparencyreport.google.com/copyright/

overview (last accessed on Aug. 18, 2025) . . . . . . . . 14

James Madison, Public Opinion, National Gazette

(December 19, 1791) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jonathan W. Penney, Privacy and Legal

Automation: The DMCA as a Case Study,

22 Stanford Tech L. Rev. 412 (2019) . . . . . . . . . . . . . 13

Laura A. Heymann, Knowing How to Know:

Secondary Liability for Speech in

55 Wake Forest Law Review 333 (2020) . . . . . . . . . 20

Cited Authorities

Page

Paul Sawers, YouTube: We’ve invested $100

million in Content ID and paid over $3

billion to rightsholders, VentureBeat (Nov.

7, 2018), available at https://venturebeat.com/

mobile/youtube-weve-invested-100-millionin-content-id-and-paid-over- 3-billion-torightsholders (last electronically accessed

Aug. 19, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tim Cushing, Fake Entities Are Still Abusing

The DMCA Takedown Process To Hide Facts

They Don’t Like, Tech Dirt, Feb. 22, 2024.

Reproduced electronically at https://www.

techdirt.com/2024/02/22/fake-entities-arestill-abusing-the-dmca-takedown-processto-hide-facts-they-dont-like/ (last accessed

on Aug. 17, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Urban, Jennifer M. and Karaganis, Joe and

Schofield, Brianna and Schofield, Brianna,

Notice and Takedown in Everyday Practice

(March 22, 2017). UC Berkeley Public Law

Research Paper No. 2755628, Available at

SSRN: https://ssrn.com/abstract=2755628

or http://dx.doi.org/10.2139/ssrn.2755628

(last electronically accessed on Aug. 18, 2025) . 15, 16

Zoe Carpou, Robots, Pirates, and the Rise of

the Automated Takedown Regime: Using the

DMCA to Fight Piracy and Protect End Users,

38 Colum. J. L. & Arts 551 (2015) . . . . . . . . . . . . . . . 13

Cited Authorities

Page

CONSTITUTIONAL PROVISIONS

Article I, § 8 of the U.S. Constitution . . . . . . . . . . . . . 4, 6

INTEREST OF AMICUS CURIAE1

Joshua Moon (“Moon”) is an American entrepreneur

who owns and operates an Internet discussion forum

known as Kiwi Farms. Kiwi Farms is a website of

some notoriety earned from an increasingly rare and

unprofitable practice - championing but not exceeding

the boundaries of First Amendment speech. Kiwi Farms

provides a forum dedicated to discussing eccentric people

who voluntarily make fools of themselves. In short, it

hosts the sometimes-harsh parody and criticism of others

and or their artistic expression. Moon, together with

Kiwi Farms were also the petitioners Moon v. Greer,

144 S. Ct. 2521, (2024) (cert. denied). 2 Moon’s interest

in this case arise from his personal experiences as the

owner and administrator of Kiwi Farms in the face of an

avalanche of choking Digital Millenium Copyright Act, 17

U.S.C. § 512, (“DMCA”) takedown notices and subsequent

litigation, a case that began nearly five years ago and

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, its members, or its counsel contributed

money intended to fund the preparation or submission of the brief.

2. The Greer case continues to be litigated in the U.S. District

Court in Utah, now on its third case number after a brief transfer

to the Northern District of Florida. After over five years of

litigation, including a stop in the Tenth Circuit where it generated

a decision that expanded copyright liability in an unprecedented

fashion, the Greer case is no closer to a final adjudication today

than it was when it began. This underscores the paralyzing

collision between free speech and modern copyright laws.

continues to this day (including the ongoing subject of

his prior petition to this Court). Mr. Moon’s case also

embodied most of the same exact issues as the case at

bar and foreshadowed the disastrous outcomes that this

Court must now consider and remedy. Both parties in the

instant case cites to Moon’s earlier case and the Tenth

Circuit’s expansive theories relating to contributory

Greer case appears nowhere in the opening brief on

the merits in this appeal. This is perhaps unsurprising,

because the Greer case represents the consequences of

the lower courts as they struggle to apply ill-defined

elements to a cause of action that was judicially-created

rather than codified through the ordinary legislative

process.

The United States Internet Preservation Society

(“USIPS”) is a nonprofit organization, founded by Moon

and others, whose mission is to restore the Internet’s

position as a vibrant marketplace for the free flow of

ideas.

Mr. Moon and USIPS file this Amicus Brief in

support of neither party, for the purpose of illustrating

just how far adrift the law of contributory copyright

infringement has become from the text of the Copyright

Act, and how the lower courts continue to build upon

this Court’s own innovation in imposing liability where

Congress did not.

INTRODUCTION AND

SUMMARY OF ARGUMENTS

Notwithstanding this Court’s admonitions against

the creation of law by the judiciary, 3 it seems somehow

less inclined to invalidate such creations once they

have been created. 4 Modern Contributory Copyright

Infringement is such judge-made law, and arguably it

should not exist. 5 It is not a cause of action found in the

text of any statute passed by Congress, but is instead

thought to trace its origins to Kalem Co. v. Harper Bros.,

222 U.S. 55 (1911) (“Kalem”). In fact, its origins (or

3. See e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75

(2001) (“Bivens is a relic of the heady days in which this Court

assumed common-law powers to create causes of action—

decreeing them to be “implied” by the mere existence of a

statutory or constitutional prohibition.”); Alexander v. Sandoval,

532 U.S. 275, 276 (2001) (“[l]ike substantive federal law itself,

private rights of action to enforce federal law must be created

by Congress.”); Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020)

(“[b]ut when a court recognizes an implied claim for damages

on the ground that doing so furthers the “purpose” of the law,

the court risks arrogating legislative power.”); United States

v. Santos-Portillo, 997 F.3d 159, 163 (4th Cir. 2021) (“[a]bsent

unusual situations, the power to craft remedies for statutory

violations lies with Congress, which after all enacted the statute,

not the federal courts.”); Doe v. GTE Corp., 347 F.3d 655, 658

(7th Cir. 2003) (“[n]ormally federal courts refrain from creating

secondary liability that is not specified by statute”).

4. See e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S.

215, 215 (2022) (taking nearly fifty years to recognize that “[t]he

Constitution makes no express reference to a right to obtain an

abortion”).

5. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)

(“copyright is the creature of the federal statute passed in the

exercise of the power vested in the Congress”).

absence thereof) are better traced to White-Smith Music

Pub. Co. v. Apollo Co., 209 U.S. 1 (1908) (“White-Smith”).

In White-Smith this Court dealt with the question of

whether a technological innovation of its day, “piano

rolls,” that allowed for the automatic playing of musical

compositions on mechanical pianos were “copies” or not.

This Court showed admirable restraint and perhaps an

appreciation for the overarching goal of Article I, § 8

of the U.S. Constitution, i.e., the promotion of science

and useful arts, in holding that “[i]t may be true that

the use of these perforated rolls, in the absence of

statutory protection, enables the manufacturers thereof

to enjoy the use of musical compositions for which they

pay no value. But such considerations properly address

themselves to the legislative, and not to the judicial,

branch of the government.” White-Smith, 209 U.S. 1 at

18. In a self-styled “concurring opinion” Justice Holmes

expressed what would be a recurring but incorrect

sympathy for the artists themselves stating that “[o]n

principle anything that mechanically reproduces that

collocation of sounds ought to be held a copy, or, if the

statute is too narrow, ought to be made so by a further

act…” Id at 28. Justice Holmes had tipped his hand.

The White-Smith Court was correct and Justice

Holmes wrong. “The enactment of copyright legislation

by Congress under the terms of the Constitution is not

based upon any natural right that the author has in his

writings ...but upon the ground that the welfare of the

public will be served and progress of science and useful

arts will be promoted by securing to authors for limited

periods the exclusive rights to their writings.” Sony

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

429 (1984) (“Sony”). Indeed, this is further underscored

by the longstanding disfavored status of monopolies in

American culture and law.6 Yet this Court has created

– and consistently expanded – theories of liability which

Congress never enacted.

In 1909 Congress reacted to piano rolls and other

incipient technology and amended the Copyright Act to

cover the mechanical reproductions at issue in WhiteSmith. Nevertheless in 1911, Justice Holmes went

further. In a two-page decision that raised far more

questions than it answered, this Court held a moving

picture company secondarily liable to copyright holders

for producing a moving pictures adaptation of General

Lew Wallace’s book Ben Hur. In doing so, Holmes

created both the modern-day contributory copyright

infringement claim and at the same time the very

Achilles heel of its application – the stated but not defined

“knowledge” standard. “[I]t has been held that mere

indifferent supposition or knowledge on the part of the

seller that the buyer of spirituous liquor in contemplating

such unlawful use is not enough to connect him with the

possible unlawful consequences. …But no such niceties

are involved here.” Kalem, 222 U.S. 55 at 62 (emphasis

added). In retrospect it appears that Justice Holmes

statement of “knowledge” but failure to define it started

the train rolling to where it is today.

6. As James Madison noted in 1791 while discussing the

pervasive evils of monopolies in English history, the specific grant

of Congressional authority under the Constitution to regulate

patent and copyrights was intended as a check to the expansion

of monopolistic power rather than to expand such monopolistic

power. See James Madison, Public Opinion, National Gazette

(December 19, 1791).

In the years since Kalem, contributory copyright

i n f r i ngement ha s of t en col l ided w it h i nc ipient

technologies, free speech and artistic expression. Over

the past fifty years such collisions have usually resulted

in the expansion of copyright holders’ monopoly. This is

not the intended result of Article I, § 8 or the Copyright

Act of 1976, 17 U.S.C. §§ 101 et seq. This Court should

therefore, and at minimum, provide a narrower and

more precise definition of the “actual knowledge”

standard it enunciated but failed to carefully define in

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

545 U.S. 913 (2005) (“Grokster”) and further relegate

contributory copyright infringement actions to the most

egregious and culpable conduct through an additional

scienter requirement.

ARGUMENTS

1. The “knowledge” standard articulated in Grokster

was neither clear nor faithfully followed by lower

courts.

While Kalem established the modern contributory

the claim’s elements emerged in Gershwin Pub. Corp.

v. Columbia Artists Mgmt., Inc., 443 F.2d 1159 (2d Cir.

1971) (“Gershwin”). There the Second Circuit described

the elements as follows: “one who, with knowledge of

the infringing activity, induces, causes or materially

contributes 8 to the infringing conduct of another, may

be held liable as a ‘contributory’ infringer. (Id at 1162,

emphasis added). Knowledge was not defined but likely

the Gershwin Court “presume[d] that such common-law

terms ‘brin[g] the old soil’ with them.” Twitter, Inc. v.

Taamneh, 598 U.S. 471, 484 (2023) (“Twitter”).

Whatever the reasoning behind the ill-defined

knowledge element, what followed was a mess. Few courts

attempted to define or discuss knowledge and rather, like

mud on an old shoe, brought the “old soil with them”. Id at

484-485. As late as 1984 this very Court stated that “[t]he

doctrine of contributory copyright infringement, however,

is not well-defined.” Sony, 464 U.S. 417 at 487 (dissent).

Indeed, the Sony Court mostly did not even address the

elements directly choosing instead, to focus on the fact

that the technology was transformative and thus “fair use”

under 17 U.S.C. § 107. This is the trouble with creating

causes of action in court rather than allowing Congress

to take the reins – elements are ill-defined and shifting,

and the contours of liability are known only post-hoc when

cases are litigated.

Numerous courts have tried to define the knowledge

element since Sony. Most have failed miserably. In

2005, this Court allegedly addressed the knowledge

element stating that “evidence of the distributors’ words

and deeds going beyond distribution as such shows a

purpose to cause and profit from third-party acts of

Other courts have interpreted this statement to imply

an “actual knowledge” standard but simultaneously

acknowledge that they themselves alternate between

either an “actual knowledge” or “willful blindness”

standard or a “know or have reason to know” standard.

Erickson Prods., Inc. v. Kast, 921 F.3d 822, 832 (9th

Cir. 2019) (explaining that a “should have known”

jury instruction was not plain error since the Ninth

Circuit Court of Appeals itself had recently, and

without overruling either definition, vacillated between

requiring “know or have reason to know” or “actual

knowledge of specific acts of infringement ….[and/or]

willful blindness of specific facts”). The Fourth Circuit

has produced a typically convoluted definition of the

knowledge necessary for contributory infringement

stating that “It is well-established that one mental

state slightly less demanding than actual knowledge—

willful blindness—can establish the requisite intent for

contributory copyright infringement. …Whether other

mental states—such as negligence (where a defendant

“should have known” of infringement)—can suffice to

prove contributory copyright infringement presents

a more difficult question.” BMG Rts. Mgmt. (US)

LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 308 (4th

Cir. 2018). See also Louis Vuitton Malletier, S.A. v.

Akanoc Solutions, Inc., 658 F.3d 936, 942 (9th Cir.

2011) (applying a know or reason to know standard);

Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d

1068, 1072 –73 (9th Cir. 2013) (applying an actual

knowledge of specific acts of infringement or willful

blindness of specific facts standard); Arista Recs.,

LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010) (applying

a know or have reason to know standard); BMG Rts.

Mgmt. (US) LLC v. Altice USA, Inc., No. 2:22-CV00471-JRG, 2023 WL 3436089, at *11 (E.D. Tex. May

12, 2023) (seeming to apply an explicit notice equals

knowledge standard by stating that “multiple courts

have determined that allegations of knowledge of

infringement based on infringement notices sent to ISPs

were sufficient to support a contributory infringement

claim”); In re Frontier Commc’ns Corp., 658 B.R. 277,

289–90 (Bankr. S.D.N.Y. 2024) (collecting and compiling

cases employing a notice equals knowledge standard);

UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718

F.3d 1006, 1021–22 (9th Cir. 2013) (applying a standard of

a “specific knowledge of particular infringing activity”);

Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d 398, 404

(D. Mass. 2011) (applying a “reason to know” standard);

Perfect 10, Inc. v. Google, Inc., No. CV 04-9484 AHM

SHX, 2010 WL 9479060, at *4 (C.D. Cal. July 30, 2010),

aff’d, 653 F.3d 976 (9th Cir. 2011) (applying an “actual

knowledge” standard coupled with ability to “take simple

measures to prevent further damage”); Ventura Content,

Ltd. v. Motherless, Inc., 885 F.3d 597, 609 (9th Cir.

2018) (in DMCA context defining knowledge as “actual

knowledge [which] means actual, not merely a possible

inference from ambiguous circumstances.”).

Since this Court created contributory liability for

unsurprising that there is no clear standard for

imposing such liability. But this Court is therefore

required to step in and clean up the mess, making clear

what sort of “knowledge” gives rise to contributory

liability.

2. Given the failure of courts to provide working

definitions of “knowledge” it is unsurprising that

Congress was forced to step in with the Digital

Millenium Copyright Act of 1998.

One of the few Courts of Appeal that attempted to

thoughtfully and carefully address the knowledge element

in the context of facts specific to internet service providers

was Religious Tech. Ctr. v. Netcom On-Line Commc’n

Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) (“Netcom”).

In Netcom, an internet bulletin board server (precursor

to modern day chat rooms) had been sued for contributory

infringement based on the allegedly infringing activities

of the bulletin board’s users. Defendant, Netcom, the

bulletin board server, argued that for it to be held liable,

its knowledge of infringement had to be unequivocal. The

Court rejected that but held that “[w]here a BBS operator

cannot reasonably verify a claim of infringement, either

because of a possible fair use defense, the lack of copyright

notices on the copies, or the copyright holder’s failure to

provide the necessary documentation to show that there

is a likely infringement, the operator’s lack of knowledge

will be found reasonable and there will be no liability for

contributory infringement for allowing the continued

distribution of the works on its system.” Netcom, 907 F.

Supp. 1361 at 1374. Three years later Congress codified

the Netcom holding in the DMCA. See also CoStar Grp.,

Inc. v. LoopNet, Inc., 373 F.3d 544, 548 (4th Cir. 2004).

While the DMCA does not displace traditional defenses

to contributory copyright infringement, it does provide

a safe harbor for those meeting its notice and takedown

requirements.

3. The DMCA has become the default means of dealing

with potential secondary copyright infringement,

but this has come at high costs to fair use and

otherwise impinges on U.S. policy including the

very policy behind the DMCA.

Given the well acknowledged absence7 of a homogonous,

predictable and usable framework for identifying

contributory copyright infringement, and the detailed

“fact intensive”8 nature of any “fair use” defense, it is

perhaps unsurprising that the DMCA is now the first

and increasingly only 9 line of defense against claims

of copyright infringement. The DMCA can perhaps be

7. See e.g., Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 96–

97 (2d Cir. 2016) (“[f]urthermore, employees of service providers

cannot be assumed to have expertise in the laws of copyright. Even

assuming awareness that a user posting contains copyrighted

music, the service provider’s employee cannot be expected to

know how to distinguish, for example, between infringements and

parodies that may qualify as fair use. Nor can every employee of

a service provider be automatically expected to know how likely

or unlikely it may be that the user who posted the material had

authorization to use the copyrighted music. Even an employee

who was a copyright expert cannot be expected to know when

use of a copyrighted song has been licensed. Additionally, the

service provider is under no legal obligation to have its employees

investigate to determine the answers to these questions.

8. Am. Soc’y for Testing & Materials v. Public.Resource.

Org, Inc., 82 F.4th 1262, 1267 (D.C. Cir. 2023) (“Fair -use analysis

is highly fact-intensive, and the four enumerated factors are not

exclusive.”).

9. See e.g., In re Frontier Commc’ns Corp., 658 B.R. 277,

289–90 (Bankr. S.D.N.Y. 2024) (collecting and compiling cases

employing a notice equals knowledge standard).

understood as the legislature’s very imperfect response to

Justice Holmes’ original act of judicial hubris in creating

the contributory copyright infringement claim in the

first place. Like most halfway measures it has had some

unfortunate results. It has spawned robo-takedowns and

robotic responses thereto. The loser is transformative fair

use under 17 U.S.C. § 107 and overarching U.S. policy to

maintain and encourage continued development of the

internet and free markets on or through it.10,11

The DMCA in relevant part states that a “service

provider shall not be liable for monetary relief …if the

service provider …upon obtaining such knowledge or

awareness [by way of receipt of a compliant takedown

notice], acts expeditiously to remove, or disable access to,

the material”. 17 U.S.C. § 512(c)(I). Not surprisingly whole

industries sprung up in the wake of the DMCA comprising

10. See e.g., Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d

788, 794 (9th Cir. 2007) (“[w]e evaluate Perfect 10’s claims with

an awareness that credit cards serve as the primary engine of

electronic commerce and that Congress has determined it to be

the “policy of the United States—(1) to promote the continued

development of the Internet and other interactive computer

services and other interactive media [and] (2) to preserve the

vibrant and competitive free market that presently exists for the

Internet and other interactive computer services, unfettered by

Federal or State regulation.”).

11. See e.g., Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d

788, 794 (9th Cir. 2007) (“Congress expressed similar sentiments

when it enacted the Digital Millennium Copyright Act (DMCA), 17

U.S.C. § 512, one of the stated purposes of which was to ‘facilitate

the robust development and worldwide expansion of electronic

commerce, communications, research, development, and education

in the digital age.’ S. Rep. 105–190, at 1–2 (1998).”).

robotic issuance and review of DMCA takedown notices.

Legal scholar Zoe Carpou had already noted over ten

years ago that the whole process of DMCA takedown

notice issuance and processing had been made largely

automatic.12 In 2019, Legal scholar Jonathan W. Penney

noted this too as well as the fact that the automatic nature

of the regime, in particular the use of “bots” to both

send and process takedown notices had been causing

exponential annual growth in the number of DMCA

takedown notices issued.13 Courts are fully aware of this

and have been for some time.14,15 The number of such

12. Zoe Carpou, Robots, Pirates, and the Rise of the

Automated Takedown Regime: Using the DMCA to Fight Piracy

and Protect End Users, 38 Colum. J. L. & Arts 551, 559 (2015).

13. Jonathan W. Penney, Privacy and Legal Automation:

The DMCA as a Case Study, 22 Stanford Tech L. Rev. 412, 426

(2019) (“In the last decade, however, the number of DMCA notices

sent to OSPs has increased exponentially, largely due to ‘bots’ and

automated processes powered by machine learning and algorithms

that constantly scan the internet and for infringing content and

send on removal requests on detection. Google, for example, deals

with approximately 2 million DMCA takedown requests per day

and in 2016, removed 900 million links.”).

14. See e.g. Enttech Media Grp. LLC v. Okularity, Inc.,

No. 220CV06298RGKEX, 2020 WL 6888722, at *1 (C.D. Cal.

Oct. 2, 2020) (“Defendant Okularity represents BackGrid,

Splash, and Xposure, among other clients, with respect to their

scans the internet for images that infringe on its clients’ work,

then automatically generates and files DMCA take-down notices

against purported infringers.”).

15. See e.g., Perfect 10, Inc. v. Giganews, Inc., No. CV 1107098-AB SHX, 2014 WL 8628031, at *10 (C.D. Cal. Nov. 14, 2014),

aff’d at 847 F.3d 657 (9th Cir. 2017) (showing the use of automatic

or robotic processing of takedown notices over ten years ago).

takedown notices are staggering and the sheer volume

further underscores the fact that there cannot be any

meaningful review of material subject to a takedown

notice to check for such niceties as “fair use” or prior

authorization. Yet somehow, lower courts have decided

the mere receipt of a DMCA takedown notice nevertheless

gives rise to contributory copyright liability. Greer v.

Moon, 83 F.4th 1283 (10th Cir. 2023), cert. denied, 144 S.

Ct. 2521, (2024).

To illustrate the magnitude of the issue of robotic

takedown notice, Google reports a running tally of all such

notices in its Transparency Report16 and as of August 18,

2025, Google reports that it had received 12,385,209,103

such notices. That same report also admits the typical

response stating that “[i]f the notice is complete, and

we find no other issues, we delist the URL from Search

results.” Id. Note that the explanation of how Google’s

takedown review process works makes no mention of

review for authorization or “fair use.” In short, though a

DMCA notice is in theory only a claim of infringement17

ample data and case law confirms the fact that usually

the receipt of a takedown notice by an internet or online

service provider is the end of the story18 irrespective of

16. Google, Transparency Report, August 18, 2025, available

electronically at https://transparencyreport.google.com/copyright/

overview (last accessed on Aug. 18, 2025).

17. Schneider v. YouTube, LLC, 674 F. Supp. 3d 704, 720

(N.D. Cal. 2023) (explaining that a DMCA takedown notice is

“only a claim of infringement” rather than notice of an actual

infringement).

18. See e.g., Emily Zarinst, Notice Versus Knowledge Under

the Digital Millennium Copyright Act’s Safe Harbors, 92 California

Law Review 257 (2004) (noting that where courts find a DMCA

whether that notice represents and conveys an instance

of actual infringement or not.19 Industry experts further

confirm this state of affairs 20 as do large online and

internet service providers themselves. Legal scholars

do too. Jennifer Urban has estimated 4.2% of DMCA

takedown notices targeted content that did not actually

and clearly match the identified infringed work, and that a

further 7.3% of takedown notices involved potential lawful

expression. 21 Large Internet service providers including

evidence of knowledge of infringement the incentive to remove

potentially infringing material without further investigation

becomes almost a foregone conclusion).

19. Schneider v. YouTube, LLC, 674 F. Supp. 3d 704, 721

(N.D. Cal. 2023) (that court noted that YouTube receives millions

of DMCA takedown notices annually and that it relies on a fully

automated process to screen such notices and that in essence so

long as the DMCA notice contains the proper representations

– the material is removed. YouTube further provided evidence

that while it receives millions of DMCA notices per year, it was

“estimating [only] approximately 50 to 100 monthly contacts with

legal counsel about fair use”).

20. “It’s a numbers game. When you’re the size of Google, it’s

impossible to vet every takedown demand. The easiest thing to

do is comply immediately and, if need be, reinstate content when

these demands are contested.” Tim Cushing, Fake Entities Are

Still Abusing The DMCA Takedown Process To Hide Facts They

Don’t Like, Tech Dirt, Feb. 22, 2024. Reproduced electronically

at https://www.techdirt.com/2024/02/22/fake-entities-are-stillabusing-the-dmca-takedown-process-to-hide-facts-they-dontlike/ (last accessed on Aug. 17. 2025).

21. See Urban, Jennifer M. and Karaganis, Joe and Schofield,

Brianna, Notice and Takedown in Everyday Practice (March

22, 2017). UC Berkeley Public Law Research Paper No. 2755628,

Available at SSRN: https://ssrn.com/abstract=2755628 or http://

Google, Twitter and Tumblr confirmed similar estimates

in their Amicus Brief in Lenz v. Universal Music Corp.,

137 S. Ct. 416 (2016) (Cert. Denied). In fact takedown

notices are increasingly being used for purely abusive

purposes22,23 to remove political advertisement, satire,

performance art and online information important to

virtually all aspects of modern life. 24 Yet the Tenth Circuit

has not only held that mere receipt of a takedown notice

might give rise to liability, it has also held that simply reposting a takedown notice itself is evidence of contributory

infringement liability. Greer, 83 F.4th 1283 at 1295.

If robotic processing of DMCA takedown notices

were not enough to kill “fair use,” recent appellate

decisions have arguably finished the job by applying

dx.doi.org/10.2139/ssrn.2755628 (last electronically accessed on

Aug. 18, 2025).

22. See also Shreya Tewari, Over thirty thousand DMCA

notices reveal an organized attempt to abuse copyright law,

Medium, April 22, 2022. Reproduced electronically at https://

lumendatabase-org.medium.com/over-thirty-thousand-dmcanotices-reveal-an-organized-attempt-to-abuse-copyright-law9aa7c07a2ccc (last accessed on Aug. 17. 2025).

23. See also Electronic Frontier Foundations, “Takedown

Hall of Shame” a regularly updated website cataloguing the most

egregious and recent example of improper issuance of DMCA

takedown notices. Available electronically at https://www.eff.org/

takedowns (last accessed on Aug. 17. 2025).

24. Corynne McSherry, Notice and Takedown Mechanisms:

Risks for Freedom of Expression Online, Electronic Frontier

Foundation (2020), available at www.eff.org/files/2020/09/04/

mcsherry _statement_re_copyright_9.7.2020-final.pdf. (last

electronically accessed on Aug. 18, 2025).

a loose knowledge standard in combination w ith

similarly loose “material contribution” standards.

More specifically, these decisions have damaged “fair

use” by holding that the mere receipt of a claim of

infringement 25 (by way of a DMCA takedown notice)

satisfies the knowledge element for contributory

1283 at 1295, the Tenth Circuit held that Amici’s receipt

of a DMCA takedown notice satisfied the amorphous

knowledge requirement and that his re-posting and

criticism (arguably a quintessential 26 “fair use”) of that

takedown notice then comprised material contribution

to direct infringement. Similarly, the lower court

in this action found that notices of infringement or

rather DMCA “claims” 27 of infringement along with the

simple measures it could have taken in response (i.e.,

removing material or subscribers from its systems) were

adequate to show “actual knowledge” of infringement.

Sony Music Ent., 464 F. Supp. 3d at 815. The court went

on to further use such notices as grounds to justify

a subsequent jury verdict of 1.5 billion dollars. Id.

at 845.

It is hard to imagine that a judicially created cause

of action with an amorphous and unpredictable standard

of liability resulting in almost universal embrace of a

25. Schneider v. YouTube, LLC, 674 F. Supp. 3d 704, 720

(N.D. Cal. 2023).

26. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579

(1994) (“We thus line up with the courts that have held that parody,

like other comment or criticism, may claim fair use”).

27. Schneider v. YouTube, LLC, 674 F. Supp. 3d 704, 720

(N.D. Cal. 2023).

robotic notice-and-takedown scheme, often abusive,

and limiting of “fair use,” somehow and nevertheless

furthers the creativity and public good that is the very

foundation of the Copyright Act itself. United States v.

Paramount Pictures, 334 U.S. 131, 158 (1948) (“[t]he

sole interest of the United States and the primary object

in conferring the monopoly lie in the general benefits

derived by the public”). It is further hard to interpret the

modern notice-and-takedown scheme as not expanding

the copyright monopoly at the expense of the public –

something the Copyright Act never envisioned and in

fact ostensibly prohibits. United States v. Paramount

Pictures, 334 U.S. 131 at 158 (“[t]he copyright law, like the

patent statutes, makes reward to the owner a secondary

consideration.”). Considering modern realities of notice

and takedown it is furthermore increasingly difficult to

square decisions by this Court that assert that copyright

protections do not now conflict with First Amendment

principles. See Eldred v. Ashcroft, 537 U.S. 186, 186–87

impermissibly restrict free speech …and it allows for

‘fair use’ even of the expression itself.”); see also Golan

v. Holder, 565 U.S. 302, 328 (2012) (same). The problem

with such arguments is that while they were accepted

at face value twenty years ago, they arguably are no

longer valid in a notice-and-takedown world that often

renders “fair use” a dead letter in practice and in which

automated or robotic DMCA takedown notices are the

norm rather than the exception.

In addition to the above concerns are concerns related

to secondary monopoly or oligopoly expansion that have

arguably been catalyzed by the DMCA. This is because

DMCA compliance is not free. In fact, internet service

providers like YouTube and Google had already spent tens

of millions of dollars on DMCA compliance software nearly

a decade ago raising serious concerns about monopolistic

impulses already well entrenched in the tech industry

being exacerbated by the DMCA takedown regime. 28,29

4. Reformation of the knowledge standard is essential

and fair.

Refor mation of the “knowledge” standard in

contributory copyright infringement is essential.

Reformation would reduce uncertainty and the wasteful

litigation that uncertainty produces. Reformation would

also hopefully allow internet service providers to enact

less draconian DMCA notice-and-takedown policies thus

increasing “fair use” since the legal exposure outside

of the DMCA safe harbor would be more quantifiable.

Providing a clearer knowledge standard would also

better align the moral concepts behind tort law with its

application to copyright. For instance, this Court has

recently explored the nature of tort liability and stated

28. Paul Sawers, YouTube: We’ve invested $100 million in

Content ID and paid over $3 billion to rightsholders, VentureBeat

(Nov. 7, 2018), available at https://venturebeat.com/mobile/

youtube-weve-invested-100-million-in-content-id-and-paid-over-3billion-to-rightsholders (last electronically accessed Aug. 19, 2025).

29. Chris Sprigman & Mark Lemley, Why Notice-andTakedown is a bit of Copyright Law Worth Saving, LA Times

(Jun. 21, 2016) (The authors note that in order for Google to launch

its own content filtering system the company has incurred a cost

of $50 million), available electronically at https://www.latimes.

com/opinion/op-ed/la-oe-sprigman-lemley-notice-and-takedowndmca-20160621-snap-story.html (last electronically accessed Aug.

19, 2025).

that “both criminal and tort law typically sanction only

‘wrongful conduct,’ bad acts, and misfeasance. …Some

level of blameworthiness is therefore ordinarily required.”

Twitter, 598 U.S. 471 at 488–89. Notwithstanding this

Court’s recent pronouncements on the culpability of

non-feasance versus misfeasance, the current knowledge

standard in contributory copyright infringement often

assigns the meaning, if not the label, of “malfeasance”

to activity which is more fairly described as “nonfeasance”. For instance, in both Greer and Sony Music

Ent., 464 F. Supp. 3d at 795 those courts used the receipt

of DMCA takedown notices as evidence of knowledge of

infringement. This occurred notwithstanding the fact that

such a notice is the assertion of a claim of infringement

rather than a statement of fact that infringement has

occurred. Schneider v. YouTube, LLC, 674 F. Supp. 3d

704, 720 (N.D. Cal. 2023). 30

What is in practice a constructive knowledge or “notice

equals knowledge” standard has produced perverse

results by the standards of Twitter. For instance, in Greer

one of the elements of contributory infringement was

allegedly satisfied by the arguably First Amendment (and

anyway related “fair use”) right to post and then criticize

or parody a takedown notice. 83 F.4th at 1294. Similarly

in Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011),

30. See also Laura A. Heymann, Knowing How to Know:

Secondary Liability for Speech in Copyright Law, 55 Wake

Forest Law Review 333, 357 (2020) (pointing out that receipt of

a notice of infringement under the DMCA or otherwise is only

“knowledge” in a legal sense of the word and further explaining

that it is a prediction of legal status that is largely unknowable

with any certainty before adjudication).

judgment rev’d in part, vacated in part, 714 F.3d 694 (2d

Cir. 2013) the lower court had found a gallery showing

works of a known “appropriation artist” Patrick Cariou

liable for contributory copyright infringement based on

the fact that as an “appropriation artist” the gallery had

“constructive knowledge” of direct infringement even

though on appeal the copying was ultimately deemed

“fair use.” Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013),

holding modified by Andy Warhol Found. for the Visual

Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021), and

holding modified by Andy Warhol Found. for Visual Arts,

Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021).

5. At a minimum, this Court should implement the

“actual knowledge” standard as recently defined

in Intel Corp. Inv. Pol’y Comm. v. Sulyma, 589 U.S.

178 (2020).

As described supra the “knowledge” element of

contributory copyright infringement has been problematic

almost since its first appearance in 1911. 31 This has

resulted in unfairness, e.g., potentially using the mere

acknowledgement 32 of a takedown notice as evidence of

knowledge when either prior authorization or fair use

may render copying or reproduction completely lawful

and even societally desirable.

31. Kalem, 222 U.S. 55 at 62 (first introducing the knowledge

element of secondary copyright infringement).

32. See Greer, 83 F.4th 1283 at 1295 (petitioner was found

liable by virtue of the “knowledge” allegedly obtained when he

received a DMCA takedown notice and then asserted fair use to

criticize and parody same).

The “knowledge” element has sometimes been

defined as “know” or “reason to know,” 33 other times

“actual knowledge,” 34 and still other times a variation of

each or something amorphous. 35 These loose standards

coupled with the crippling liability 36 invite an obvious

response – that any takedown notice will be complied

with immediately whether justified or not. Even aside

from fairness concerns, such a definition inhibits the

fair use and transformation of copyrighted works and

is inconsistent with the well-established U.S. policy

of promoting internet vibrancy. 37 The over-censorship

33. Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc.,

658 F.3d 936, 943 (9th Cir. 2011).

34. Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1068,

1072–73 (9th Cir. 2013).

35. See e.g., BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns,

Inc., 881 F.3d 293, 308 (4th Cir. 2018) (“Whether other mental

states—such as negligence (where a defendant “should have

known” of infringement)—can suffice to prove contributory

36. See e.g., Sony Music Ent. v. Cox Commc’ns, Inc., 464 F.

Supp. 3d 795, 847 (E.D. Va. 2020), aff’d in part, vacated in part,

rev’d in part, 93 F.4th 222 (4th Cir. 2024) (jury verdict for damages

of 1.5 billion dollars for contributory infringement).

37. “It is the policy of the United States to preserve the

vibrant and competitive free market that presently exists for

the Internet and other interactive computer services, unfettered

by Federal or State regulation.” 47 U.S.C. §§ 230(b)(1); see also

Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 794 (9th Cir.

2007) (“Congress has determined it to be the “policy of the United

States—(1) to promote the continued development of the Internet

and other interactive computer services and other interactive

media [and] (2) to preserve the vibrant and competitive free

that it inadvertently produces also raise legitimate

First Amendment concerns. 38 For these reasons this

Court should finally and unequivocally endorse an

“actual knowledge standard” for contributory copyright

infringement. Given the aforementioned policy reasons as

well as the traditionally low importance (or even disdain)

for monopoly rights, it should furthermore explicitly give

“actual” knowledge the restrictive meaning it recently

embraced in Intel Corp. Inv. Pol’y Comm. v. Sulyma, 589

U.S. 178, 184-185 (“the word ‘actual’ meant what it means

today: ‘existing in fact or reality.’ …The addition of ‘actual’

in § 1113(2) signals that the plaintiff’s knowledge must

be more than ‘potential, possible, virtual, conceivable,

theoretical, hypothetical, or nominal.’”).

While such a clear definition of “actual knowledge”

might upset rightsholders (and their lawyers), it should

not be forgotten that “[t]he copyright law, like the

patent statutes, makes reward to the owner a secondary

consideration.” United States v. Paramount Pictures,

334 U.S. 131 at 158. Alternatively, the Court should go a

market that presently exists for the Internet and other interactive

computer services, unfettered by Federal or State regulation. …

Congress expressed similar sentiments when it enacted the Digital

Millennium Copyright Act (DMCA), 17 U.S.C. § 512, one of the

stated purposes of which was to ‘facilitate the robust development

and worldwide expansion of electronic commerce, communications,

research, development, and education in the digital age.’ S. Rep.

105–190, at 1–2 (1998).”).

38. See e.g., Bikram’s Yoga Coll. of India, L.P. v. Evolation

incorporates First Amendment goals by ensuring that copyright

protection extends only to the forms in which ideas and information

are expressed and not to the ideas and information themselves.”).

step further and eliminate the contributory infringement

cause of action which it imprudently created and which

has been unwieldy to apply.

At a minimum, this Court should introduce a firm

scienter requirement as defined in Twitter.

Contributory copyright infringement is analogous

to its criminal counterpart of “aiding and abetting.”

In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th

Cir. 2003). This Court recently explored such civil tort

liability in Twitter. In doing so it drew extensively from

the framework in Halberstam v. Welch, 705 F.2d 472 (D.C.

Cir. 1983). Specifically, this Court applied Halberstam’s

relative analysis of culpable conduct whereby the

culpability elements are measured relative to one another.

Twitter 598 U.S. 471 at 503–04. More specifically “that

framework generally required …that the defendant

have given knowing and substantial assistance to the

primary tortfeasor. Notably, courts often viewed those

twin requirements as working in tandem, [to establish

a conscious, culpable participation in the tort] with a

lesser showing of one demanding a greater showing of

the other.” Twitter, 598 U.S. 471 at 491-492 (cleaned up).

This Court should implement the Twitter/Halberstam

framework to contributory copyright infringement

elements. This would better allow a party with a colorable

fair use argument to be judged differently than a party

with scienter as it is classically defined, i.e., as having “a

mental state consisting in an intent to deceive, manipulate

or defraud.” 39 This would further likely weed out passive

39. See Dekalb Cnty. Pension Fund v. Transocean Ltd., 817

F.3d 393, 407 (2d Cir. 2016), as amended (Apr. 29, 2016) (“Black’s

conduits of information such as those described in Netcom,

907 F. Supp. at 1374 (N.D. Cal. 1995) or CoStar Grp., Inc.

v. LoopNet, Inc., 373 F.3d 544, 548 (4th Cir. 2004), while

also leaving open the possibility that new technologies

could be deemed “transformative” enough (at least in the

absence of classic scienter) to allow for them to continue

without liability. Such transformative technologies have

begun to include the large language models needed

for artificial intelligence making reformation of the

secondary infringement concepts of the essence to national

security.40,41

CONCLUSION

Contributory Copyright Infringement is a judicially

created tort that adds to rightsholder protections present

in the Copyright Act without any statutory basis. It suffers

from Constitutional infirmities related to its genesis the abrogation of legislative powers by the judiciary.

The tort also results in the improper expansion of a

of the progress of science and useful arts, for instance

transformative “fair use” – the very Constitutional basis

for the Copyright Act. Because of this and further because

Law Dictionary (10th ed. 2014) defining “scienter” in part as ‘[a]

mental state consisting in an intent to deceive, manipulate, or

defraud’”).

40. See e.g., New York Times Co. v. Microsoft Corp., 777 F.

Supp. 3d 283 (S.D.N.Y. 2025) (holding that the New York Times

plausibly alleged contributory infringement at the pleadings stage

where Microsoft large language models used imports from news

organization plaintiffs).

41. Exec. Order No. 14179, 90 C.F.R. 8741 (2025).

of fundamental issues of fairness or moral correctness,

this Court should at very least reform the “knowledge”

element of this tort and add a scienter element. Or, the

Court should scrap this judicial innovation in its entirety

and allow Congress rather than the courts to decide the

ambit of contributory liability.

Respectfully submitted this 5th day of September

2025,

Nathaniel M. Lindzen

The Law Office of

Nathaniel M. Lindzen

57 School Street

Wayland, MA 01778

(212) 810-7627

nlindzen@corpfraudlaw.com

Matthew D. Hardin

Counsel of Record

Hardin Law Office

101 Rainbow Drive, #11506

Livingston, TX 77399

(202) 802-1948

MatthewDHardin@

protonmail.com

Counsel for Amicus Curiae Joshua Moon

and United States Internet Preservation Society

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.