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

Supreme Court briefOct 22, 2025

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No. 24-171

IN THE

Supreme Court of the United States

COX COMMUNICATIONS, INC. AND COXCOM, LLC,

Petitioners,

SONY MUSIC ENTERTAINMENT, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE THE MOTION PICTURE

ASSOCIATION, INC. IN SUPPORT OF RESPONDENTS

KELLY M. KLAUS

MUNGER, TOLLES & OLSON LLP

560 Mission Street

27th Floor

San Francisco, CA 94105

(415) 512-4000

kelly.klaus@mto.com

DONALD B. VERRILLI, JR.

Counsel of Record

ELAINE J. GOLDENBERG

DANIEL J. KANE

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001

(202) 220-1100

donald.verrilli@mto.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT.....................................................2

ARGUMENT ...............................................................6

II.

THE LONG-ESTABLISHED RULE

FOR CONTRIBUTORY

INFRINGEMENT UNDERGIRDS A

CRITICAL SYSTEM OF

COOPERATION BETWEEN

SERVICE PROVIDERS ...................................6

Online Piracy Remains A Major

Problem And Drain On The

Economy .................................................6

Cooperative Agreements

Premised On Meaningful

Secondary Liability Are Critical

To Mitigating The Harms Of

Online Piracy .........................................9

COX SEEKS TO UPEND SETTLED

Imposed Liability On Those Who

Knowingly Facilitate

Infringement, Regardless Of

TABLE OF CONTENTS

(Continued)

Page

Whether They Intend To Induce

Or Encourage Infringement ................12

Cox Seeks To Upend Settled Law

And Replace It With Broad

Service-Provider Immunity .................19

CONCLUSION ..........................................................28

iii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

In re Aimster Copyright Litig.,

334 F.3d 643 (7th Cir. 2003)............................8, 16

EMI Christian Music Grp., Inc. v.

MP3tunes, LLC,

844 F.3d 79 (2d Cir. 2016) ...................................14

Fogerty v. Fantasy, Inc.,

510 U.S. 517 (1994) ..............................................27

Fonovisa, Inc. v. Cherry Auction, Inc.,

76 F.3d 259 (9th Cir. 1996)..................................15

Gershwin Publ’g Corp. v. Columbia

Artists Mgmt., Inc.,

443 F.2d 1159 (2d Cir. 1971) ......... 3, 13, 14, 20, 21

Halberstam v. Welch,

705 F.2d 472 (D.C. Cir. 1983) ..............................22

Harper v. Shoppell,

28 F. 613 (S.D.N.Y. 1886) ................................3, 14

Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd.,

545 U.S. 913 (2005) ....... 2, 3, 6-8, 13, 15, 20-23, 27

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

508 F.3d 1146 (9th Cir. 2007)..............................15

TABLE OF AUTHORITIES

(Continued)

Page(s)

Screen Gems-Columbia Music, Inc. v.

Mark-Fi Recs., Inc.,

256 F. Supp. 399 (S.D.N.Y. 1966) .......................14

Smith & Wesson Brands v. Mexico,

605 U.S. 280 (2025) ..........................................4, 22

Sony Corp. of Am. v. Universal City

Studios, Inc.,

464 U.S. 417 (1984) .................................. 13, 21, 22

Twentieth Century Music Corp. v.

Aiken,

422 U.S. 151 (1975) .................................. 23, 26, 27

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) .................................... 4, 22, 23

UMG Recordings, Inc. v. Grande

Commc’ns Networks, LLC,

118 F.4th 697 (5th Cir. 2024) ........................16, 17

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 8, cl. 8 ..........................................3

FEDERAL STATUTES

17 U.S.C. 106 .............................................................17

17 U.S.C. 512 .............................................................18

17 U.S.C. 512(i)(1)(A) ................................ 5, 18, 24, 25

TABLE OF AUTHORITIES

(Continued)

Page(s)

17 U.S.C. 512(l) .........................................................25

LEGISLATIVE MATERIALS

H.R. Rep. No. 94-1476 (1976) ...................................17

H.R. Rep. No. 105-551, pt. 2 (1998) .............. 19, 24, 25

H.R. Rep. No. 105-796 (1998) ...................................12

S. Rep. No. 105-190 (1998) ....................... 17-19, 24-26

Intentional Inducement of Copyright

Infringements Act of 2004: Hearing

on S.2560 Before the S. Comm. on

the Judiciary, 108th Cong. (2004)

(statement of Marybeth Peters,

OTHER AUTHORITIES

All. for Creativity & Ent., What Do We

Know About 2023 Movie & TV

Piracy Trends Worldwide,

https://www.alliance4creativity.com/

wp-content/uploads/2025/01/WDWKAbout-Movie-TV-Global-PircyTrends-092724.pdf

(last visited Oct. 20, 2025) .....................................7

TABLE OF AUTHORITIES

(Continued)

Page(s)

David Blackburn et al., Glob.

Innovation Pol’y Ctr., Impacts of

Digital Video Piracy on the U.S.

Economy (June 2019) .............................................8

Annemarie Bridy, Is Online Copyright

Enforcement Scalable?,

13 Vand. J. of Ent. & Tech. L. 695

(2011) ......................................................................8

Comments of Google Inc., In re Request

for Comments on U.S. Copyright

Office Section 512 Study,

Dkt. No. USCO-2015-7 (Apr. 1,

2016) ......................................................... 10, 11, 27

Comments of The Internet Association,

In re Request for Comments on U.S.

Dkt. No. USCO-2015-7 (Apr. 1,

2016) .......................................................................9

MUSO, 2024 Piracy Trends and

Insights (May 2025) ...............................................8

3 Nimmer on Copyright § 12.04[A][3][a]

(2025) ....................................................................13

5 Nimmer on Copyright § 20.05[C]

(2025) ......................................................................7

vii

TABLE OF AUTHORITIES

(Continued)

Page(s)

6 Patry on Copyright § 21.41

(Mar. 2025) ...........................................................13

Randal C. Picker, Copyright as Entry

Policy: The Case of Digital

Distribution, 47 Antitrust Bull. 423

(2002) ......................................................................8

Charles H. Rivkin, Working Toward a

Safer, Stronger Internet, Motion

Picture Association (Mar. 21, 2022),

https://www.motionpictures.org/pres

s/working-toward-a-safer-strongerinternet/................................................................11

U.S. Copyright Office, Section 512 of

Title 17 (May 2020) .................6, 7, 9-12, 18, 24, 25

Paul A. Watters, et al., How much

material on BitTorrent is infringing

content?, 16 Info. Sec. Tech. Rpt. 79

(2011) ......................................................................7

YouTube Help, How Content ID works,

https://support.google.com/youtube/

answer/2797370?hl=en ........................................11

INTEREST OF AMICUS CURIAE 1

The Motion Picture Association, Inc. (“MPA”) is a

not-for-profit trade association founded in 1922. The

MPA serves as the voice and advocate of the motion

picture and television industry, advancing the business and art of storytelling, protecting the creative

and artistic freedoms of storytellers, and bringing entertainment and inspiration to audiences worldwide.

The MPA has a particular interest in the proper interpretation of the Copyright Act. A fair, balanced,

and predictable system of copyright rights and remedies is essential to MPA’s mission and to its members’

ability to finance, produce, and distribute compelling

filmed entertainment. The MPA regularly participates as amicus in copyright cases of national and international importance.

The MPA’s member companies are Netflix Studios, LLC; Paramount Pictures Corporation; Sony

Pictures Entertainment Inc.; Universal City Studios

LLC; Walt Disney Studios Motion Pictures; Warner

Bros. Entertainment Inc.; and Amazon Studios LLC. 2

The MPA’s members and their affiliates are the leading producers and distributors in the theatrical,

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

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

or person other than amicus and its counsel made any monetary

contribution intended to fund the preparation or submission of

this brief. Sony Pictures Entertainment Inc. is a member of amicus MPA and a corporate affiliate of respondent Sony Music Entertainment and other Sony Music affiliate respondents. To be

clear, none of those respondents made any monetary contribution intended to fund the preparation or submission of this brief.

MPA member Amazon Studios LLC did not participate in the

preparation or submission of this brief.

television, and home-entertainment markets in the

United States and abroad.

The MPA has a strong interest in the proper interpretation of the rights and remedies of copyright owners under the Copyright Act. Copyright theft undermines sales, profitability, and competitiveness in this

very important part of the U.S. economy. Preventing

online theft is essential to promoting the robust availability to consumers of diverse and high-quality

filmed content.

In particular, secondary liability doctrines, including contributory infringement, are critically important to protecting and vindicating the rights of

of “enforc[ing] rights * * * effectively against all direct infringers,” secondary liability often provides

redress and deter widespread infringement of their

works, particularly on the internet. Metro-GoldwynMayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930

(2005).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Cox asks the Court to make a tectonic change to

the long-settled standard for contributory copyright

infringement. Cox’s request is unsupported by this

Court’s cases, runs contrary to Congress’s intent, and

threatens profoundly destabilizing consequences for

cooperative efforts by copyright owners and service

providers to address the scourge of online copyright

infringement. It is particularly striking that Cox asks

for such a dramatic overhaul, with such negative consequences for the copyright system, in this case. Cox

has no one but itself to blame for having made the intentional choice not to take even minimal steps to address its customers’ repeat infringement.

The Fourth Circuit broke no new ground in this

case. That court applied the contributory infringement rule that courts have applied for more than a

century. Under that rule, “one who, with knowledge

of the infringing activity, induces, causes or materially contributes to the infringing conduct of another,

may be held liable as a ‘contributory’ infringer.”

Gershwin Publ’g Corp. v. Columbia Artists Mgmt.,

Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); see also, e.g.,

Harper v. Shoppell, 28 F. 613, 615 (S.D.N.Y. 1886)

(early application of same rule). The contributory infringement doctrine, like other secondary liability

doctrines in copyright, allows copyright owners to vindicate their rights when confronted with mass piracy

and thus supports the creation and lawful dissemination of copyrighted works. See Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930

(2005).

Congress, which is vested with the constitutional

responsibility for ensuring copyright protection, see

U.S. Const. art. I, § 8, cl. 8, has known of and approved of the courts’ common-law development of contributory infringement and other secondary liability

doctrines in copyright. Congress embraced those doctrines when it enacted the current Copyright Act in

1976. And Congress preserved those doctrines and

provided service providers with important incentives

to respect those doctrines when it enacted the Digital

Millenium Copyright Act (“DMCA”) in 1998.

The well-established rule for contributory copyright infringement, built on decades of precedent, has

fostered critical cooperation among copyright owners

and multiple service providers whose technologies

fuel the internet ecosystem. That system of cooperation has helped to mitigate the vast harms that online

piracy inflicts on copyright creators and the public,

which is the ultimate beneficiary of the rights that

result of mere happenstance or good intentions. The

system developed against the backdrop of well-established legal rules that allocate the rights and responsibilities of various commercial actors in the online

ecosystem. Those background rules include the contributory infringement standard that the Fourth Circuit and numerous other courts have applied.

Given the contributory infringement doctrine’s

deep roots and salutary effects, Cox’s request that the

Court upend all of this is extraordinary. Cox asks this

Court to hold that liability for contributory copyright

infringement requires not only (as it always has) that

the defendant knowingly facilitate infringement, but

that in all cases the defendant must intentionally induce or encourage direct infringement. Cox Br. 23.

But liability for intentionally inducing copyright infringement is not coterminous with the entirety of

contributory infringement liability. Cox’s contrary

argument rests on profound misreadings of this

Court’s precedents, including Grokster, Twitter, Inc.

v. Taamneh, 598 U.S. 471 (2023), and Smith & Wesson Brands v. Mexico, 605 U.S. 280 (2025), none of

which support Cox’s proposed rule.

Moreover, Cox’s proposed rule would render superfluous the incentive structure that Congress hard-

wired into the DMCA. Under that statute, a service

provider, to be eligible for a “safe harbor” from monetary liability for copyright infringement, must

“adopt[] and reasonably implement[]” a policy for

dealing with customers who repeatedly use the provider’s service to infringe. 17 U.S.C. 512(i)(1)(A). If

Cox were right that the law imposes no potential liability on Cox for any customer’s infringement—no

matter how repetitive or unrepentant—so long as Cox

refrains from inducing that infringement, then there

was no reason for Congress to create the safe-harbor

incentive that it did. Congress did not intend such a

result, and there is no reason for the Court to rewrite

the contributory infringement standard so as to vitiate Congress’s incentive structure.

Cox’s brief is strewn with doom-and-gloom predictions that, absent the rule it seeks, Cox will be forced

to an intolerable choice: indiscriminately terminate

internet access for grandparents and military barracks, on the one hand; or risk crushing liability, on

the other. That is a false dichotomy. Cox could have

taken many steps short of terminating internet service as part of a graduated system for addressing

known instances of repeat infringement by its customers. The evidence at trial established that Cox deliberately decided not to follow the graduated policy

that Cox itself voluntarily enacted or otherwise take

steps to limit Cox’s knowing assistance to the rampant, ongoing infringements perpetrated by Cox’s

paying subscribers. The evidence further established

that Cox made this choice for the purpose of retaining

the revenues it received from those infringing customers.

While Cox may regret sacrificing its eligibility for

safe-harbor protection, that regret is no reason to

change the law that numerous other service providers

have structured their operations around with no demonstrable negative consequences. The MPA respectfully submits that the Court should reject Cox’s

request to dramatically change the law of contributory copyright infringement.

ARGUMENT

I. THE LONG-ESTABLISHED RULE FOR CONTRIBUTORY

INFRINGEMENT

UNDERGIRDS A CRITICAL SYSTEM OF COOPERATION BETWEEN COPYRIGHT OWNERS

AND SERVICE PROVIDERS

Online Piracy Remains A Major

Problem And Drain On The Economy

The potential for the online environment to be a

haven for mass piracy has been apparent from the

advent of the internet’s commercial deployment.

Policy makers and market participants alike

understood that the ability to transfer a virtually

unlimited number of “near-perfect digital copies of

copyrighted works” rapidly and seamlessly would

mean that copyright infringement would inevitably

increase at a previously unimaginable rate. See U.S.

2020) (“Section 512 Report”). Indeed, as this Court

observed in 2005, infringement was occurring online

on a “staggering,” “gigantic scale.” Metro-GoldwynMayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,

923, 940 (2005).

Online piracy remains rampant today. The “exponential[]” growth of internet use over the past two

decades has had many salutary effects, including enabling “copyright owners to distribute content directly

to consumers’ living rooms via streaming services.”

Section 512 Report at 30-31. At the same time, advances in internet technology have “enable[d] new

forms of piracy,” including “streaming of unlicensed

content and stream-ripping”—i.e., unlicensed copying

of streamed media. Id. at 29-31. Cloud computing

similarly “presents new challenges for combating piracy,” as copyrighted content may be disseminated in

ways that may be difficult or impossible to monitor.

Id. at 31. And the development and deployment of

large-scale artificial-intelligence systems are opening

up ever-broader frontiers of mass-scale infringement.

See 5 Nimmer on Copyright § 20.05[C] (2025).

The technology at issue in this case—modern peerto-peer (“P2P”) copying—continues to be a popular

tool for infringement. In 2005, this Court described

the “probable scope of copyright infringement” on P2P

services as “staggering.” Grokster, 545 U.S. at 923.

In 2011, between 89% and 97% of files shared on P2P

networks were infringing. Paul A. Watters, et al.,

How much material on BitTorrent is infringing content?, 16 Info. Sec. Tech. Rpt. 79 §§ 3.4, 3.6

(2011). And in 2023, there were roughly 18.9 billion

downloads of pirated movies and television shows

worldwide using P2P software. All. for Creativity &

Ent., What Do We Know About 2023 Movie & TV Piracy Trends Worldwide, https://www.alliance4creat

ivity.com/wp-content/uploads/2025/01/WDWKAbout-Movie-TV-Global-Pircy-Trends-092724.pdf

(last visited Oct. 20, 2025).

The extraordinary scope of online piracy imposes

massive costs on the film and television industries.

One study estimated that in 2024, there were roughly

121 billion visits to film and television piracy sites

worldwide. MUSO, 2024 Piracy Trends and Insights

2 (May 2025). Other studies have found that piracy

on that scale results in at least $29.2 billion in lost

revenue for the U.S. economy—and hundreds of thousands of lost jobs—every year. See David Blackburn

et al., Glob. Innovation Pol’y Ctr., Impacts of Digital

Video Piracy on the U.S. Economy ii (June 2019).

The volume of infringing conduct makes effective

enforcement against direct infringers a practical impossibility. As this Court explained in Grokster,

“[w]hen a widely shared service or product is used to

commit infringement, it may be impossible to enforce

rights in the protected work effectively against all direct infringers.” 545 U.S. at 929-930. “[C]hasing individual consumers is time consuming and is a teaspoon solution to an ocean problem.” In re Aimster

(quoting Randal C. Picker, Copyright as Entry Policy:

The Case of Digital Distribution, 47 Antitrust Bull.

423, 442 (2002)). Stated otherwise, litigation against

direct infringers simply “is not a scalable mechanism

for dealing with the high volume of copyright disputes” arising from internet piracy. Annemarie

Bridy, Is Online Copyright Enforcement Scalable?, 13

Vand. J. of Ent. & Tech. L. 695, 724 (2011).

Cooperative Agreements Premised

On Meaningful Secondary Liability

Are Critical To Mitigating The

Harms Of Online Piracy

Notwithstanding the scale of online infringement,

in the current enforcement ecosystem, there are ways

of mitigating the problems posed by piracy through

the cooperative efforts of copyright holders and service providers. Such service providers include not

only the providers of internet access, like Cox in this

case, but also the many intermediaries who play a

part in the complex infrastructure that supports internet distribution. Since the DMCA’s enactment,

infringement, from best practices to formal, binding

agreements.” Section 512 Report at 35.

Such “cooperative” arrangements can arise only

when (in the words of one association representing a

host of internet companies and service providers) “all

stakeholders are incentivized into good faith participation.” Comments of The Internet Association 1718, 29, In re Request for Comments on U.S. Copyright

Office Section 512 Study, Dkt. No. USCO-2015-7 (Apr.

1, 2016). And that system of incentives “has proven

foundational to economic growth in the digital age” by

promoting both the “protection of exclusive rights”

and “legal and operational certainty for Internet platforms.” Ibid.

Under the current legal regime—and the current

allocation of incentives—rightsholders and service

providers for decades have entered into various cooperative arrangements. Such cooperation has evolved

in response to consistently changing strategies for infringing copyrighted works on a broad scale. In 2015,

for example, rightsholders, service providers, and

members of the telecommunications industry developed the Brand Integrity Program Against Piracy,

which helped advertisers avoid placing advertisements on websites and other media properties that facilitate piracy. Section 512 Report at 38 & n.180. In

2016, Facebook developed a video-matching tool that

allowed rights owners to create a reference library of

videos and control how those videos may be shared on

Facebook and Instagram. Id. at 45-46. And in 2020,

the cloud-storage platform Dropbox began using

hash-matching technology to prevent materials subject to DMCA takedown notices from being shared on

its system. Id. at 46.

The MPA, in particular, has been involved in

many such efforts. For example, in 2011, the MPA

and other rightsholders signed a voluntary memorandum of understanding with internet service providers

(“ISPs”) to create a graduated response system. Under that system, participating ISPs who received notice of alleged infringement from copyright owners

would send escalating alerts to subscribers and—after at least six such alerts—would impose mitigation

measures ranging from temporary reductions in internet speed to suspension of service, all subject to

subscribers’ right to independent review. Section 512

Report at 40.

The MPA also has worked extensively with online

search engines, including parties that have lauded

“voluntary collaboration” with copyright owners.

Comments of Google Inc. 3, In re Request for Comments on U.S. Copyright Office Section 512 Study,

Dkt. No. USCO-2015-7 (Apr. 1, 2016). In addition to

demoting search results from sites that receive “a

high number of valid removal notices” from

rightsholders, ibid., search engines have removed

search results pointing to piracy websites in response

to foreign judicial orders directed at ISPs, Press Release, Charles H. Rivkin, Working Toward a Safer,

Stronger Internet, Motion Picture Association (Mar.

21, 2022), https://www.motionpictures.org/press/

working-toward-a-safer-stronger-internet/. That targeted effort has been exceedingly effective, resulting

in sharp declines in traffic to delisted pirate site domains. Ibid.

A particularly well-known initiative is YouTube’s

Content ID program, which scans videos uploaded to

YouTube against a database of files submitted by

YouTube Help, How Content ID works, https://sup

port.google.com/youtube/answer/2797370?hl=en; see

Section 512 Report at 42. When a match is made, the

owner is notified and may choose whether to prevent

the video from being viewed, monetize the video by

running advertisements against it, or merely track

the video’s viewership statistics. Ibid. Meanwhile,

users who wish to dispute the claim of interference

with copyright may do so while the video remains

temporarily available. Id. at 42-43.

The cooperative efforts described above are not

matters of pure altruism. Major commercial actors

structure and conduct their operations against the

background legal rules. Here, one significant rule is

the potential for copyright liability in the event a service provider’s conduct crosses the line for secondary

liability. Indeed, Congress has recognized as much,

explaining that “providing creators with viable remedies against online infringement” is essential to ensuring “‘strong incentives for service providers and

networked environment.’” Section 512 Report at 21

(quoting H.R. Rep. No. 105-796, at 72 (1998)). And as

explained in the following section, that system of incentives, backstopped with potential liability for service providers, reflects a legal regime that has developed over more than a century—which Cox now asks

this Court to destroy.

II.

COX SEEKS TO UPEND SETTLED COPYRIGHT LAW

Cox asks for a sea change in copyright law. Over

the last half-century, Congress and the courts have

worked in tandem to ensure a functional system of

secondary liability. Cox would jettison that system,

but offers no persuasive justification for doing so under either this Court’s precedent or the facts of this

case. And Cox’s dismantling of contributory liability

for intermediaries would have far-reaching results

Congress plainly did not intend—including by disincentivizing the cooperative arrangements that hold

back a tidal wave of online infringement.

Liability On Those Who Knowingly

Facilitate Infringement, Regardless

Of Whether They Intend To Induce

Or Encourage Infringement

and vicarious infringement. This Court in Grokster

applied a particular strain of secondary liability

known as “inducement,” which “premises liability on

purposeful, culpable expression and conduct,” with

the “object of promoting” infringement. 545 U.S. at

936-937. But as the Court has recognized, inducement is just one species of secondary liability, which

incorporates various “common law principles.” Id. at

930; see Sony Corp. of Am. v. Universal City Studios,

Inc., 464 U.S. 417, 435 (1984) (“Sony-Betamax”).

Cox insists repeatedly that intentional inducement or encouragement of infringement is the sine

qua non of contributory copyright liability. E.g., Cox

Br. 2, 17, 23, 24. But the rule for contributory infringement has long been understood and applied

more broadly. In the Second Circuit’s canonical framing—cited in Grokster, see 545 U.S. at 930—contributory infringement is infringement by “one who, with

knowledge of the infringing activity, induces, causes

or materially contributes to the infringing conduct of

another.” Gershwin Publ’g Corp. v. Columbia Artists

Mgmt., Inc., 443 F.2d 1159, 1161-1162 (2d Cir. 1971)

(citation modified); accord Brief for the United States

as Amicus Curiae Supporting Petitioners at 8, MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545

U.S. 913 (2005) (“[T]he doctrine of contributory infringement is premised on the defendant’s own conduct that induces or contributes to the primary infringement.” (emphasis added) (citing Gershwin)).

And the “essence” of contributory infringement is

“knowledge of the infringing conduct and facilitating

the means by which the direct infringement is accomplished.” 6 Patry on Copyright § 21.41 (Mar. 2025);

accord 3 Nimmer on Copyright § 12.04[A][3][a] (2025)

(explaining that contributory liability is available if a

defendant “acts with knowledge and his activities aid

the primary infringer in accomplishing his illegitimate activity”).

1. Federal courts have long held that knowing facilitation may give rise to contributory liability without an additional requirement that the defendant intend to induce or encourage infringement.

In Gershwin, for example, the Second Circuit observed that various entities could be held contributorily liable in connection with the sale of infringing records. These included a “packaging agent” that

“shipp[ed] the infringing records,” 443 F.2d at 1162

(citing Screen Gems-Columbia Music, Inc. v. Mark-Fi

Records, Inc., 256 F. Supp. 399, 403 (S.D.N.Y. 1966)),

even without evidence the packaging agent had the

objective of promoting infringement.

The contributory copyright infringement rule has

a long pedigree, deriving from the “common law doctrine that one who knowingly participates [in] or furthers a tortious act is jointly and severally liable with

the prime tortfeasor.” Gershwin, 443 F.2d at 1162

(quoting Screen Gems, 256 F. Supp. at 403); accord,

e.g., Harper v. Shoppell, 28 F. 613, 615 (S.D.N.Y.

1886) (defendant who sold copyrighted materials

“knowing at the time of selling” that the purchaser

would infringe is liable for contributory infringement). And that rule persists today. The Second Circuit continues to apply the rule that a defendant “materially contributes to the infringing conduct of another if the defendant engages in personal conduct

that is part of, encourages, or assists the infringement.” EMI Christian Music Grp., Inc. v. MP3tunes,

LLC, 844 F.3d 79, 100 (2d Cir. 2016) (emphasis

added) (citation modified). Thus, after Grokster, the

Second Circuit does not limit contributory copyright

infringement to those cases where the defendant induces infringement.

The Ninth Circuit likewise has found contributory

infringement without a requirement of inducement.

In Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259

(9th Cir. 1996), that court held that the operator of a

flea market where vendors sold infringing records

materially contributed to that infringement because

“it would be difficult for the infringing activity to take

place in the massive quantities alleged without the

support services provided by” the operator, including

“the provision of space, utilities, parking, advertising,

plumbing, and customers.” Id. at 264. The court

reached that conclusion notwithstanding the operator’s argument that its conduct was purely “passive,”

as the operator “actively str[ove] to provide the environment and the market for counterfeit recording

sales to thrive.” Ibid.

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

508 F.3d 1146 (9th Cir. 2007), the Ninth Circuit held

that Google (which was a defendant along with Amazon.com) could be contributorily liable for facilitating

access to infringing images online even if it “did not

undertake any substantial promotional or advertising

efforts to encourage visits to infringing websites” or

“provide a significant revenue stream to the infringing websites.” Id. at 1172. Regardless of whether it

intended to promote infringement, Google “substantially assist[ed] [the infringing] websites” in “distribut[ing] their infringing copies to a worldwide market and assist[ed] a worldwide audience of users” in

“access[ing] infringing materials.” Ibid.

The Seventh Circuit, too, has recognized that

knowing facilitation can give rise to contributory infringement liability, and it has done so without respect to whether the defendant induced copyright infringement. In In re Aimster Copyright Litigation,

334 F.3d 643 (7th Cir. 2003), the Seventh Circuit upheld a preliminary injunction against a file-sharing

service on contributory infringement grounds, explaining that the service knew that its users were

making “substantial” infringing uses of the service’s

software and failed to show that “it would have been

disproportionately costly for [the service] to eliminate

or at least reduce substantially the infringing uses.”

Id. at 650, 653.

Finally, the Fifth Circuit has squarely held that a

service provider can meaningfully contribute to infringement by knowingly providing infringing customers with a necessary tool for infringement. In

UMG Recordings, Inc. v. Grande Communications

Networks, LLC, 118 F.4th 697 (5th Cir. 2024), petition

for cert. pending, No. 24-967 (docketed Mar. 10, 2025),

that court addressed circumstances materially identical to those here, cited the Fourth Circuit’s decision

approvingly, and held that “supplying a product with

knowledge that the recipient will use it to infringe

copyrights is exactly the sort of culpable conduct sufficient for contributory infringement.” Id. at 717-718

(citation modified).

2. Congress has been fully aware of the longstanding rule of contributory copyright infringement, and

has not decreed that an intent to induce infringement

is a per se requirement for secondary liability.

In the Copyright Act of 1976, Congress gave copyright owners the rights not only to reproduce, adapt,

publish, perform, and display their works, but also to

“authorize” those activities. 17 U.S.C. 106 (emphasis

added). The authoritative House Report underlying

the Act confirms that, by hard-wiring the authorization right into the statute, Congress “intended to

avoid any questions as to the liability of contributory

infringers” under existing law. H.R. Rep. No. 941476, at 61 (1976).

Two decades later, Congress revisited the issue of

contributory copyright infringement when it enacted

the DMCA. Having reviewed the existing secondary

liability scheme as it developed under the 1976 Act

and through decades of case law, Congress deliberately chose to “leave current law” as it was. S. Rep.

No. 105-190, at 19 (1998). Congress thus enacted the

DMCA on the assumption that, absent congressional

action, service providers (including ISPs) could be

held liable for their knowing facilitation of infringement. See ibid.

Recognizing that the internet created unprecedented opportunities for infringement, Congress

drafted the DMCA to strike a balance between the interests of copyright holders and service providers.

Congress recognized that the “U.S. creative industries”—among America’s “largest and fastest growing

economic assets”—would “hesitate to make their

works readily available on the Internet without reasonable assurance that they [would] be protected

against massive piracy.” S. Rep. No. 105-190, at 8-10.

And Congress well knew that ISPs were the entities

most essential to “stemming the tide of copyright infringement.” UMG, 118 F.4th at 703. At the same

time, Congress recognized that under existing secondary liability doctrines—which Congress specifically

declined to disturb—ISPs could be exposed to substantial liability and therefore needed incentives to

ensure that they would make the “necessary investment in the expansion of the speed and capacity of the

Internet.” S. Rep. No. 105-190, at 8, 19.

Congress aimed to balance those interests through

“a series of ‘safe harbors’” that would limit the

monetary liability of service providers whose subscribers use their services to infringe, provided that

the service providers met certain eligibility requirements. S. Rep. No. 105-190, at 19. Where a service

provider’s liability might otherwise arise “by reason

of ” several different types of uses of their service, one

of the safe-harbor eligibility requirements is to

respond expeditiously to notices of infringement

provided by copyright owners. See generally 17

U.S.C. 512. Where notice-and-takedown rules are

deemed to apply, copyright owners bear the costs of

giving service providers notice of infringing material

or activity, and service providers bear the costs of

responding expeditiously to remove or limit access to

the infringing material or activity. See Section 512

Report at 25. And to be eligible for any of the DMCA’s

safe harbors, service providers must, among other

things, “adopt[] and reasonably implement[] * * * a

policy that provides for the termination in

appropriate circumstances of subscribers * * * who

are repeat infringers.” 17 U.S.C. 512(i)(1)(A).

Those requirements make sense only on the assumption that, absent safe-harbor protection, service

providers may face secondary copyright liability for

knowingly providing services that facilitate infringe-

ment. See S. Rep. No. 105-190, at 19; H.R. Rep. No.

105-551, pt. 2, at 64 (1998). If, as Cox suggests, a service provider can be held liable only when it actively

promotes infringement by users who have demonstrated their intent to continue infringing, and therefore can escape liability by simply ignoring known infringing conduct that the provider facilitates, it is impossible to see why Congress would have required

providers to adopt and reasonably implement repeatinfringer policies in order to avoid liability. Rather,

the DMCA reflects that Congress adopted existing

principles of secondary liability, such that service providers may be held liable “based on the doctrines of

direct, vicarious or contributory liability for infringement as * * * articulated in the Copyright Act and in

the court decisions interpreting and applying that

statute.” S. Rep. No. 105-190, at 55.

Cox Seeks To Upend Settled Law

And Replace It With Broad ServiceProvider Immunity

In prior litigation, Cox was found to have spurned

the DMCA’s safe harbor by choosing not to implement

its stated policy for addressing the actions of demonstrated repeat infringers. Although it does not challenge that finding here, Cox now asks this Court to

grant service providers an immunity from secondary

liability that is even broader than the DMCA’s limitation on monetary liability. In particular, Cox asks the

Court to hold that, unless a service provider takes an

“affirmative act with the intent of facilitating” infringement, the service provider may not be held contributorily liable. Cox Br. 23 (citation modified). But

that theory cannot be reconciled with precedent. It

would render the DMCA safe harbor superfluous.

And, with no corresponding benefit, Cox’s proposed

rule would upend the existing law’s incentive structure for service providers to cooperate in combatting

the tide of online piracy.

1. As Respondents have explained, see Sony Br.

28-44, the legal arguments supporting Cox’s theory

are uniformly unpersuasive. Cox principally argues

that this Court in Grokster overturned decades of settled law to hold that a plaintiff alleging contributory

liability must prove not only a defendant’s knowledge

and facilitation of another’s wrongdoing but also an

intent to promote infringement. See Cox Br. 23; U.S.

Br. 12-13. But Grokster did no such thing. The Court

in that case addressed only “the inducement rule”—a

theory of liability adapted from patent law that treats

a defendant as liable for a third party’s infringing acts

if he “distributes a device with the object of promoting

its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.” 545 U.S. at 936-937. The Court did not

purport to treat inducement as the sole species of contributory liability; to the contrary, the Court favorably cited Gershwin and acknowledged the broader

importance of secondary liability in the online-piracy

context, where “the only practical alternative” to suing every direct infringer is to “go against the distributor of the copying device for secondary liability on a

theory of contributory or vicarious infringement.” Id.

at 930.

Cox’s counterargument rests largely on a footnote

in Grokster stating that a defendant’s mere “failure to

take affirmative steps to prevent infringement” would

not support contributory liability absent “other evidence of intent.” 545 U.S. at 939 n.12; see Cox Br. 2,

26, 36, 41. But that footnote—which even the government does not cite—addresses only the impermissibility of inferring a service provider’s mental state solely

from the fact of the provider’s failure to develop

“mechanisms to diminish the infringing activity using

their software.” Grokster, 545 U.S. at 939. The Court

was not asked to decide, and did not purport to hold,

that continuing to provide infringement-facilitating

services with knowledge of the uses to which they

would be put was insufficient to establish the material contribution element of contributory infringement (the question Cox presents). Nor did the Court

hold, or even suggest, that plaintiffs proceeding under

any theory of contributory liability must prove not

only the defendant’s knowledge of the infringing activity but also, by virtue of the material-contribution

element, an intent to induce infringement. The footnote thus provides no support for Cox’s effort to import a heightened mental-state requirement into the

material-contribution element of contributory infringement liability.

The government, for its part, relies principally on

the fact that the Court in Sony-Betamax and Grokster

did not hold that “knowledge that particular customers will commit direct infringement [is] a sufficient

basis for imposing secondary liability.” U.S. Br. 11;

see id. at 11-13. But as the government appears to

recognize, see id. at 22, the Court in those cases did

not purport to define the outer bounds of liability for

contributory copyright infringement. To the contrary,

the Court in both cases favorably cited Gershwin and

alternative theories of secondary liability before analyzing how those theories applied in each case. See

Sony-Betamax, 464 U.S. at 437-438 & n.18; Grokster,

545 U.S. at 930. Neither decision “displace[d] other

theories of secondary liability.” Grokster, 545 U.S. at

934 (addressing Sony-Betamax).

Cox and the government fare no better with their

reliance on Twitter, Inc. v. Taamneh, 598 U.S. 471

(2023), and Smith & Wesson Brands v. Mexico, 605

U.S. 280 (2025). See Cox Br. 26-28; U.S. Br. 17-21.

Those cases, litigated under the Justice Against Sponsors of Terrorism Act and the Protection of Lawful

Commerce in Arms Act, respectively, said nothing

about contributory liability under the Copyright Act.

In neither case did the Court purport to establish a

test for all forms of secondary liability, much less for

circumstances (like those here) where the evidence

shows that a defendant knew of specific repeatoffender subscribers and knew those subscribers

likely would use the defendant’s services to infringe

again. Contra Twitter, 598 U.S. at 498-500 & n.13;

Smith & Wesson, 605 U.S. at 295-296. To the

contrary, those cases arose in particular “context[s]”

and address particular “common-law tradition[s].”

Twitter, 598 U.S. at 485. In Twitter, Congress had

specifically provided that the relevant “framework”

for assessing the liability of those who “aid[] and

abet[]” international terrorism was set forth in a 1983

decision of the D.C. Circuit. Id. at 484-485 & n.6

(citing Halberstam v. Welch, 705 F.2d 472 (D.C. Cir.

1983). And in Smith & Wesson, the Court emphasized

that “principles of aiding and abetting from the

criminal law” provided the relevant framework for

assessing the liability of those who “aid[] and abet[]”

a firearms offense. 605 U.S. at 286-287.

But as the Court recognized in Twitter, commonlaw principles are “not identical” across different legal

domains. 598 U.S. at 493. Thus, even granting that

“common law principles” inform secondary liability in

the copyright context, Grokster, 545 U.S. at 930, there

is no basis for assuming that aiding-and-abetting

principles drawn from other contexts apply in pari

materia where, as here, the operation of the common

law has resulted in a distinct set of principles under a

distinct statutory scheme, all in service of a distinct

purpose (namely, “stimulat[ing] artistic creativity for

the general public good”), Twentieth Century Music

Corp. v. Aiken, 422 U.S. 151, 156 (1975).

Rather, the common thread tying the strands of

secondary copyright liability together is not intent or

“affirmative steps” but, as even Cox recognizes, “culpability.” Cox Br. 33; see id. at 22, 27-28, 32, 40; accord U.S. Br. 25. And there is no shortage of culpability here. As the court of appeals explained, Cox knew

of its subscribers’ past infringing activity, and the

company forfeited any argument that notices of past

infringement failed to establish its knowledge that

those subscribers were substantially certain to infringe again. Pet. App. 9a, 23a-25a; contra Cox Br. 35

(relitigating Cox’s knowledge); U.S. Br. 22 (same).

Armed with that knowledge, “providing the means to

infringe is culpable pursuant to the common law rule

that a person is presumed to intend the substantially

certain results of his acts.” Pet. App. 27a.

In addition, Cox adopted a sham policy to address

repeat infringement. Cox capped the number of notices it would accept and the number of accounts it

would terminate. Pet. App. 9a. Upon reactivation,

Cox treated users previously terminated for infringing activity as if they had never infringed. See ibid.

And contrary to Cox’s protestations concerning the

consequences of termination, see, e.g., Cox Br. 44-45,

during just one brief stretch, Cox terminated over

600,000 subscribers for nonpayment, while terminating only 32 subscribers for violating its Acceptable

Use Policy. Pet. App. 9a. 3

Moreover, although Cox repeatedly suggests that

the possibility of liability here would require “throwing innocent users off the internet en masse,” Cox. Br.

11, termination was not the only remedy available to

Cox. Other companies have developed—and actually

implemented—graduated responses to notices of infringement, including escalating alerts, training,

throttling of benefits, and temporary suspensions.

See Section 512 Report at 40. Such policies are consistent with the DMCA safe harbor, which requires

termination only in “appropriate circumstances,” 17

U.S.C. 512(i)(1)(A), and therefore does not require a

“strict ‘two strikes and you’re out’ policy” for, say, “an

educational board whose young users sometimes inadvertently upload infringing content,” Section 512

Report at 105. Cox, however, decided that it would be

better to “avoid losing revenue” than to meaningfully

restrict infringement by all manner of repeat infringers. Pet. App. 28a. Where, as here, a company knows

that particular customers are repeatedly using its service to commit infringement, yet the company adopts

Although Cox also professes concern about terminating access

for “individuals who did, in fact, infringe,” Cox. Br. 44, Congress

considered that concern and found it insubstantial for repeat

infringers: “those who repeatedly or flagrantly abuse their

access to the Internet through disrespect for the intellectual

property rights of others should know that there is a realistic

threat of losing that access,” S. Rep. No. 105-190, at 52; H.R. Rep.

No. 105-551, pt. 2, at 61.

only a sham policy and otherwise fails to take steps to

address the harms its service facilitates for those customers, no common-law rule bars liability.

2. Cox’s theory also cannot be squared with the

DMCA. Cox asks this Court to hold that, unless a service provider actively induces or promotes infringement, the provider may not be held contributorily liable. Under that theory, a service provider that provides the means to infringe and knows with certainty

that particular customers will use the service to do so

cannot be held liable so long as the provider does not

actively encourage the customers’ infringement. See

Cox Br. 23. But that unprecedented rule would render superfluous Congress’s incentive for service providers to adopt reasonable policies for the termination

of repeat infringers. If liability could be avoided altogether simply by ignoring ongoing infringement by

known subscribers, service providers would have no

incentive to adopt and implement a reasonable repeat-infringer policy, see 17 U.S.C. 512(i)(1)(A).

It is true, as Cox asserts, that a service provider’s

failure to qualify for the safe harbor does not mean,

ipso facto, that the provider is liable for infringement.

See 17 U.S.C. 512(l). But one of the main purposes of

the safe-harbor framework is to provide incentives for

service providers who claim not to be interested in facilitating infringement to demonstrate their bona

fides when presented with evidence that their users

are infringing. See S. Rep. No. 105-190 at 19; H.R.

Rep. No. 105-551, pt. 2, at 64. If Cox were correct that

knowledge and facilitation of infringement are insufficient for liability, those incentives would evaporate,

as service providers who simply avoided affirmatively

inducing infringement could thereby also avoid the

costs of adopting and reasonably implementing a repeat-infringer policy. That is not the scheme Congress intended when it enacted the DMCA to protect

“service providers” who, “[i]n the ordinary course of

their operations, * * * must engage in all kinds of

acts that expose them to potential copyright infringement liability.” S. Rep. No. 105-190, at 8.

3. Cox’s arguments, if accepted, would not only excuse Cox from the predictable consequences of its own

culpable conduct, but also severely threaten the creative industries that depend on meaningful copyright

enforcement.

The “ultimate aim” of copyright law is to promote

the market for, and the creation of, new works of authorship. Aiken, 422 U.S. at 156. But under Cox’s

theory, there is no meaningful assurance that the law

will “secure a fair return” for artists’ “creative labor.”

Ibid. Rather, if this Court were to embrace Cox’s theory, the existing safeguards against ubiquitous piracy

could crumble. To take one example, if Cox were correct, online video-streaming platforms might allow

users to post whatever videos they like—including

copyrighted films and television shows—for free public consumption without copyright owners’ consent.

The service providers could avoid any “affirmative,

purposeful conduct intended to further” infringement

by refusing to advertise the potential for infringement

or otherwise encourage such use. Cox Br. 23. And

because the platforms are so often used in noninfringing ways, it might be impossible to prove that the

companies profit directly from the infringement itself

(such that vicarious liability might attach). If that

world came to be, it would erase virtually every “incentive” to “stimulate artistic creativity” in the

creation of video content “for the general public good.”

Aiken, 422 U.S. at 156.

At minimum, a decision for Cox here would wipe

away the incentive structure that encourages voluntary agreements between rightsholders and service

providers. Cox adopted its “thirteen-strike policy,”

purportedly designed to “reduc[e] future infringement,” because it felt financial pressure to avail itself

of the DMCA safe harbor. Pet. App. 22a. But if Cox

wins here, it would have no need even for that sham

policy. Thus, the Court would place at risk the cooperative agreements rightsholders have reached with

similar service providers to stamp out piracy. See pp.

9-12, supra; Comments of Google Inc. 3, In re Request

for Comments on U.S. Copyright Office Section 512

Study, Dkt. No. USCO-2015-7 (Apr. 1, 2016) (explaining that the DMCA—and the promise of a safe harbor

from liability—has “succeeded in fostering voluntary

collaboration”). A corresponding increase in piracy

would then further diminish revenues that make it

possible for the creators of motion pictures and other

works to create new works. And that, in turn, would

undermine copyright law’s core function of “encourag[ing] the production of original literary, artistic, and musical expression for the good of the public.”

Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994).

There is no reason for the Court to risk that outcome. The Court has already recognized the “practical” imperative of suits against intermediary service

providers “for secondary liability.” Grokster, 545 U.S.

at 914. Indeed, “enforcement against the ‘middlemen’

who encourage, facilitate and benefit from infringement has long served an important role in providing

meaningful and efficient copyright protection.”

Intentional Inducement of Copyright Infringements

Act of 2004: Hearing on S.2560 Before the S. Comm.

on the Judiciary, 108th Cong. (2004) (statement of

Marybeth Peters, Register of Copyrights, U.S. Copyright Office). Having failed to take even simple steps

to avail itself of the safe harbor, and having demonstrated its culpability, Cox offers no good reason to

discard that tradition.

CONCLUSION

The Court should reject Petitioners’ efforts to upend existing rules of contributory copyright infringement.

Respectfully submitted,

KELLY M. KLAUS

MUNGER, TOLLES & OLSON LLP

560 Mission Street

27th Floor

San Francisco, CA 94105

(415) 512-4000

kelly.klaus@mto.com

DONALD B. VERRILLI, JR.

Counsel of Record

ELAINE J. GOLDENBERG

DANIEL J. KANE

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001

(202) 220-1100

donald.verrilli@mto.com

Counsel for Amicus Curiae

OCTOBER 22, 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.