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., et al.,

Petitioners,

SONY MUSIC ENTERTAINMENT, et al.

Respondents.

O N W RIT O F C ERTIORARI TO THE U NITED S TATES

C OURT OF A PPEALS FOR THE F OURTH C IRCUIT

BRIEF OF AMICUS CURIAE

THE COPYRIGHT ALLIANCE

IN SUPPORT OF RESPONDENTS

ERIC J. SCHWARTZ

MITCHELL SILBERBERG &

KNUPP LLP

1818 N Street NW, 7th

Floor

Washington, DC 20036

ROBERT H. ROTSTEIN

Counsel of Record

ELEANOR M. LACKMAN

JAMES D. BERKLEY

MITCHELL SILBERBERG &

KNUPP LLP

2049 Century Park East,

18th Floor

Los Angeles, CA 90067

(310) 312-2000

rxr@msk.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

STATEMENT OF IDENTITY AND INTEREST

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

SUMMARY OF ARGUMENT .................................. 2

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

EXPRESSION. ............................................... 6

II.

ROBUST COPYRIGHT PROTECTION

FUELS ECONOMIC GROWTH. .................. 7

III.

THE LONG-ESTABLISHED PRINCIPLE

THAT ONE WHO KNOWINGLY AND

MATERIALLY CONTRIBUTES TO

AS A CONTRIBUTORY INFRINGER IS

ESSENTIAL TO STOPPING MASSIVE

Decades of Case Law and the

Establish That Knowingly Providing

the Site And Facilities for Copyright

Infringement Gives Rise to

Secondary Liability. .......................... 10

When Enacting the DMCA, Congress

Confirmed the Applicability of Cases

Holding that Knowingly Providing

the Means for Primary Infringement

Constitutes Contributory

Infringement. .................................... 15

IV.

The Court’s Grokster Opinion Yet

Again Confirmed Established Law. . 16

COX ACTED WILLFULLY—A

CONCLUSION ESSENTIAL TO

PROMOTING COPYRIGHT’S

OBJECTIVES. ............................................. 19

CONCLUSION ....................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Columbia Pictures Indus., Inc. v. Fung,

710 F.3d 1020 (9th Cir. 2013) ........................... 17

Columbia Pictures Industries, Inc. v. Aveco, Inc.,

800 F.2d 59 (3d Cir. 1986) .......................... 15, 16

Eldred v. Ashcroft,

537 U.S. 186 (2003) ............................................. 6

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

76 F.3d 259 (9th Cir. 1996) ......................... 14, 16

Gershwin Publ’g Corp. v. Columbia Artists

Mgmt., Inc.,

443 F.2d 1159 (2d Cir. 1971) ...... 4, 11, 12, 13, 17

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

471 U.S. 539 (1985) ......................................... 1, 6

Henry v. A.B. Dick Co.,

224 U.S. 1 (1912) ............................... 4, 10, 11, 13

In re Aimster Copyright Litigation,

334 F.3d 643 (7th Cir. 2003) ............................... 9

Kalem Co. v. Harper Bros.,

222 U.S. 55 (1911) ............................................... 4

Mazer v. Stein,

347 U.S. 201 (1954) ......................................... 6, 7

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

Ltd.,

545 U.S. 913 (2005) ................. 5, 9, 10, 11, 16, 17

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

Records, Inc.,

256 F. Supp. 399 (S.D.N.Y. 1966) ............... 11, 12

Smith & Wesson, Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos,

605 U.S. 280 (2025) ................................. 5, 18, 19

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

464 U.S. 417 (1984) ... 4, 10, 11, 13, 14, 15, 16, 17

Twentieth Century Music Corp. v. Aiken,

422 U.S. 151 (1975) ............................................. 6

Twitter v. Taamneh,

598 U.S. 471 (2023) ................................. 5, 18, 19

UMG Recordings, Incorporated v. Grande

Communications Networks, L.L.C.,

118 F.4th 697 (5th Cir. 2024) ........................... 18

Constitutional Provision

U.S. Const., Art. I, § 8, cl. 8...................................... 2

Statutes

17 U.S.C. § 106 ............................................. 4, 12, 18

17 U.S.C. § 512 ................................... 4, 5, 15, 16, 18

17 U.S.C. § 512(a) ................................................... 21

Legislative Material

H.R. Rep. No. 94-1476 (1976) ................................ 12

H.R. Rep. No. 105-551, pt. 2 (1998) ....................... 16

S. Rep. 105-190 (1998) ........................................... 15

Other Authorities

3 Melville B. Nimmer & David Nimmer,

Nimmer on Copyright (2025) ...................... 12, 17

6 William F. Patry, Patry on Copyright

(Sept. 2025)............................................ 14, 17, 18

Randal C. Picker, Copyright as Entry Policy: The

Case of Digital Distribution, 47 Antitrust Bull.

423 (2002) ............................................................ 9

Robert Stoner and Jéssica Dutra, Copyright

Industries In The U.S. Economy: The 2024

Report (Feb. 2025) ............................................... 8

U.S. Chamber Of Commerce, Impacts of Digital

Piracy on the U.S. Economy (June 2019) ........... 9

U.S. Chamber of Commerce, Unlocking Creativity:

A Study of the Socioeconomic Benefits of

STATEMENT OF IDENTITY AND INTEREST

OF AMICUS CURIAE 1

This Court has repeatedly recognized that the

Framers of the Constitution intended copyright to be

the engine of free expression. See, e.g., Harper &

Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,

558 (1985). Consistent with that crucial societal

objective, amicus curiae The Copyright Alliance

(“Amicus”) is dedicated to promoting and protecting

the ability of creative professionals to earn a living

from their creativity. The Alliance is a nonprofit,

nonpartisan

501(c)(4)

public

interest

and

educational organization and represents the

creators and over 15,000 organizations across the

entire spectrum of creative industries, including

authors, songwriters, musical composers and

recording artists, graphic and visual artists,

photographers,

journalists,

documentarians,

television

and

filmmakers,

and

software

developers—and the small businesses that are

affected by the unauthorized use of their works. The

individual creators and innovators, creative union

workers, and small businesses in the creative

industry, as well as the organizations and

1 Pursuant to Supreme Court Rule 37.6, Amicus Curiae

affirms that no counsel for a party authored this brief in whole

or in part, and no such counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than the amicus curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission. Respondent Universal Music

Group is a member of the Copyright Alliance. Other Copyright

Alliance members may join other amicus briefs submitted in

this case.

corporations that support and invest in them. The

livelihoods of this diverse array of creators and

companies depend on the commercialization of the

exclusive intellectual property rights guaranteed by

creation and dissemination of new works and

promotes the progress of science and the useful arts.

Amicus submits this brief in support of

Plaintiffs/Respondents Sony Music Entertainment

et al. (“Sony”) because reversing the Fourth Circuit’s

holding would upend decades of well-established law

governing contributory copyright infringement.

Doing so would permit bad actors to facilitate

massive digital theft, all to the grave detriment of

the copyright holders, consumers of expressive

works, and the U.S. economy. As a result, reversal

would damage the very incentives for creation of

expression that the Framers took care to protect in

the Constitution.

SUMMARY OF ARGUMENT

The Copyright Clause, Art. I, § 8, cl. 8, exists to

foster the creation and dissemination of original

works for the general public welfare. Working in

tandem with the First Amendment, copyright serves

as an engine of free expression. This salutary

purpose depends on ensuring that copyright holders

receive a fair return for exploiting their copyrighted

works. That has become increasingly challenging in

the digital age, when a single pirated, perfect copy of

a copyrighted work can find its way onto the internet

and where billions of people can not only access it,

but also duplicate and further disseminate it, all

without cost.

When calibrated appropriately, the incentives

to create expressive works have a significant

positive effect on our nation’s economy. A recent

study found that copyright industries contribute

nearly eight percent of the United States’ gross

domestic product, which translates to $1.8 trillion

per year.

The ability of copyright owners to hold

accountable those who knowingly facilitate

infringement serves a crucial purpose in protecting

the creation and dissemination of expressive works

in the online environment, generating revenues that

greatly contribute to economic growth and stability.

The importance of preserving the critical right to

hold those who facilitate copyright infringement

secondarily liable for the illegal conduct of a vast

number of individuals could hardly be clearer in this

case, in which pursuing individual lawsuits against

anonymous direct infringers would have been

clearly impracticable and likely impossible.

Exonerating Cox would undermine the foundations

of our laws and have a deleterious effect on free

speech and economic growth.

Attempting to cast itself as a mere “passive”

and innocent equipment provider rather than a

party that knowingly and materially contributed to

ignores the relevant statutory language and

legislative history of the Copyright Act of 1976 and

the Digital Millennium Copyright Act of 1998, as

well as a long line of case law establishing that one

who

materially

contributes

infringement by knowingly providing a site, facility,

or means to infringe is secondarily liable as a

contributory infringer.

The law governing secondary liability—

including the principle that one who knowingly and

materially contributes to infringement is liable for

that infringement—derived from the early cases

Kalem Co. v. Harper Bros., 222 U.S. 55 (1911) and

Henry v. A.B. Dick Co., 224 U.S. 1 (1912) (overruled

on other grounds, Motion Picture Patents Co. v.

Universal Film Mfg. Co., 243 U.S. 502 (1917)). Later,

in a widely followed opinion, the Second Circuit held

that “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) (emphasis added). Five years after

Gershwin, Congress enacted the current Copyright

Act of 1976. Section 106 of the Act gives the

authorize” the enumerated rights listed in the

statute. The legislative history of the statute makes

clear that Congress intended to preserve the

common law governing secondary liability, including

Gershwin’s then-recent formulation of contributory

infringement. In the ensuing years, numerous

courts, including the Supreme Court in Sony Corp.

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

(1984) (“Sony-Betamax”), reaffirmed the principle

that one who, with actual knowledge, materially

contributes to copyright infringement is liable as a

contributory infringer.

In 1998, Congress enacted the Digital

Millennium Copyright Act (“DMCA”), 17 U.S.C. §

512, which in appropriate circumstances provides a

safe harbor for internet service providers that,

among other conditions, adopt and implement a

policy that provides for the termination of repeat

section 512 emphasizes that Congress intended to

preserve existing law governing contributory

infringement—and that existing law included

liability for knowingly providing the means, site,

and facilities for primary infringement, as Cox did

in this case. In 2005, the Supreme Court in MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545

U.S. 913 (2005) (“Grokster”), once again reaffirmed

the core principle that one who knowingly and

materially assists a primary infringer is

contributorily liable.

Cox, along with its supporting amici, asserts

that this Court’s holdings in Twitter v. Taamneh,

598 U.S. 471 (2023), and Smith & Wesson Brands,

Inc. v. Estados Unidos Mexicanos, 605 U.S. 280

(2025), preclude liability here, because Cox is

purportedly a “passive” internet service provider. In

light of the constitutional underpinnings of

long-established law governing contributory

and, in any event, factually distinguishable.

The Fourth Circuit’s holding that Cox was a

willful infringer for the purpose of applying

statutory damages should also be affirmed. Under

any standard of willfulness, Cox was a willful

infringer. Given the massive damage that online

privacy causes, robust remedies against infringers

are essential. Affirming the Court of Appeals’ correct

ruling on this issue is necessary to preserve

dissemination of expressive works.

Amicus urges the Court to affirm.

ARGUMENT

“By establishing a marketable right to the use

of one’s expression, copyright supplies the economic

incentive to create and disseminate ideas.” Harper

& Row, 471 U.S. at 558 (citing Mazer v. Stein, 347

U.S. 201, 219 (1954)). As this Court observed in

Mazer, copyright posits that “encouragement of

individual effort by personal gain is the best way to

advance public welfare….” 347 U.S. at 219. See

Twentieth Century Music Corp. v. Aiken, 422 U.S.

151, 156 (1975) (The ultimate aim of copyright is “to

stimulate artistic creativity for the general public

good.”).

The copyright laws and the First Amendment

work in tandem to promote free expression:

The

Clause

and

First

Amendment were adopted close in time.

This proximity indicates that, in the

Framers’

view,

limited

monopolies are compatible with free speech

principles. Indeed, copyright’s purpose is to

promote the creation and publication of free

expression.

Eldred v. Ashcroft, 537 U.S. 186, 219 (2003); Harper

& Row, 471 U.S. at 558 (Copyright law guarantees a

property right with a view toward “suppl[ying] the

economic incentive to create and disseminate

ideas.”) (citing Mazer, 347 U.S. at 219 and Aiken,

422 U.S. at 156).

Cox and certain amici in support of Petitioner

conjecture that the Fourth Circuit’s opinion

impinges upon the First Amendment by potentially

cutting off access to certain institutional users. See,

e.g., Brief of Amici Curiae American Civil Liberties

Union, et al.; Brief of Amicus Curiae Floor64, Inc.

d/b/a The Copia Institute. Aside from raising

speculative scenarios that are not before the Court,

these amici completely ignore copyright’s unique

role in encouraging creation and dissemination of

expressive works. Given the enormous harm that

piracy causes, the damage to free speech rights from

a reversal would dwarf any conjectural scenarios

that Cox’s supporting amici have raised.

II.

ROBUST COPYRIGHT PROTECTION FUELS

ECONOMIC GROWTH.

A broad body of empirical research suggests

that strong copyright protections have historically

encouraged the creation of original works, leading

not only to the dissemination of expressive works

but also to significant economic benefits to the

nation. See U.S. Chamber of Commerce, Unlocking

Creativity: A Study of the Socioeconomic Benefits of

at 22, https://www.uschamber.com/intellectualproperty/unlocking-creativity-copyright-report.

According to the Chamber of Commerce:

Creative works enhance the welfare of

society and are associated with significant

economic activity. For example, Oxford

Economics estimated that in 2019, concerts

and the live entertainment industry in the

United States had a total economic impact

of $132.6 billion, supported 913,000 total

jobs, and was associated with labor income

of approximately $42.2 billion.

Id. at 8. It is estimated that in 2021, “the core

industries

directly

contributed

approximately $1.8 trillion to [U.S.] GDP,

accounting for 7.8% of GDP and 8.1% of

employment.” Id. at 13, 15. And “[d]igitally traded

services, including copyright-reliant products, play a

key role in U.S. trade.” Id. at 17 (citing authority

suggesting that the U.S. digital trade surplus has

grown by 408% since 1999). According to the

International

Intellectual

Property

Alliance

(“IIPA”), based on government statistics, “the core

of the [U.S.] digital economy in 2021, while the total

65%.” Id. (citing IIPA, Copyright Industries in the

U.S. Economy: 2022 Report (2022)). Finally, the

most recent IIPA study concluded that in 2023, the

the U.S. economy as a whole. Robert Stoner and

Jéssica Dutra, Copyright Industries in the U.S.

Economy: The 2024 Report, at 8 (Feb. 2025),

https://www.iipa.org/files/uploads/

2025/02/IIPACopyright-Industries-in-the-U.S.-Economy-Report2024_ONLINE_FINAL.pdf. Without question, a

robust system of copyright is a critical precondition

for a thriving U.S. economy.

Conversely, digital piracy has a demonstrably

harmful effect both on the dissemination of

expressive works and on the economy. Inadequate

lower investment in risky creative production.

Unlocking Creativity at 23. A number of years ago,

one study concluded that global online piracy of

motion pictures and television alone “costs the U.S.

economy at least $29.2 billion in lost revenue each

year.” U.S. Chamber Of Commerce, Impacts of

Digital Piracy on the U.S. Economy, at forward, ii,

12 (June 2019), https://www.uschamber.com/assets/

documents/Digital_Video_Piracy_June_2019.pdf.

There can be no doubt that massive infringement of

the type at issue in this case inhibits free expression

and adversely affects the nation’s economy.

III. THE LONG-ESTABLISHED PRINCIPLE

THAT ONE WHO KNOWINGLY AND

MATERIALLY

CONTRIBUTES

AS A CONTRIBUTORY INFRINGER IS

ESSENTIAL TO STOPPING MASSIVE

In this digital age, where, as here, it may be

impossible to enforce rights in the protected work

effectively against all direct infringers, the only

practical alternative is to sue secondary infringers.

See Grokster, 545 U.S. at 929-30 (citing In re

Aimster Copyright Litigation, 334 F.3d 643, 645-646

(7th Cir. 2003)). As one commentator put it, “chasing

individual consumers is time consuming and is a

teaspoon solution to an ocean problem,” Randal C.

Picker, Copyright as Entry Policy: The Case of

Digital Distribution, 47 Antitrust Bull. 423, 442

(2002). Secondary liability exists to address this

problem. Reversing the Fourth Circuit’s ruling

would conflict with established precedent and clear

statutory mandates and likely usher in a new flood

of digital piracy by stripping copyright owners of one

of the only tools available to them to combat online

infringement.

Decades of Case Law and the Copyright

Act’s Legislative History Establish That

Knowingly Providing the Site and

Facilities for Copyright Infringement

Gives Rise to Secondary Liability.

“[D]octrines of secondary liability emerged from

common law principles and are well established in

the law.” Grokster, 545 U.S. at 930-31 (citing SonyBetamax, 464 U.S. at 486 (Blackmun, J.,

dissenting)). Over a century ago, in Henry v. A.B.

Dick Co., this Court recognized in a patent

infringement suit that a seller of a product that has

lawful uses will nevertheless be liable as a

contributory infringer when that seller knows that

the buyer will in fact use the product for infringing

uses. Henry, 224 U.S. at 48-49.

In Henry, the plaintiff sued for patent

infringement in connection with a mimeograph

machine. The defendants sold ink suitable for use on

the infringing machine—and also noninfringing

machines—with knowledge that the buyer would

use the ink to infringe. In holding that the defendant

could be liable as a contributory infringer, the Court

said:

These defendants are, in the facts certified,

stated to have made a direct sale to the user

of the patented article, with knowledge

that under the license from the patentee

she could not use the ink, sold by them

directly to her, in connection with the

licensed machine, without infringement of

the monopoly of the patent. It is not open to

them to say that it might be used in a noninfringing way, for the certified fact is that

they made the sale, with the expectation

that it would be used in connection with

said mimeograph.

224 U.S. at 49 (cleaned up). In other words, even

though the defendant’s product had substantial

noninfringing uses, actual knowledge and material

contribution—including providing the means to

infringe—gave rise to secondary liability. In both

Grokster, 545 U.S. at 932–33, and Sony-Betamax,

464 U.S. at 441–42, the Court cited Henry as

relevant to copyright infringement cases.

In 1971, the Second Circuit decided Gershwin

Publishing Corp. v. Columbia Artists Management,

Inc., 443 F.2d 1159, in which the court held that “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.” Id. at 1162. As an

example of contributory infringement, the court

cited Screen Gems-Columbia Music, Inc. v. Mark Fi

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

noting:

[T]he district court held that an advertising

agency which placed non-infringing

advertisements for the sale of infringing

records, a radio station which broadcast

such advertisements and a packaging

agent which shipped the infringing records

could each be held liable as a “contributory”

infringer if it were shown to have had

knowledge, or reason to know, of the

infringing nature of the records. Their

potential liability was predicated upon the

common law doctrine that one who

knowingly participates or furthers a

tortious act is jointly and severally liable

with the prime tortfeasor.

Id. (cleaned up).

In 1971, Congress was in the throes of the

resulted in the 1976 Act. Congress enacted the

current Copyright Act about five years after

Gershwin. Section 106 of the Act, which enumerates

a copyright owner’s exclusive rights, provides: “[T]he

owner of copyright under this title has the exclusive

rights to do and to authorize any of the following:

[listing rights].” (Emphasis added.) According to the

House Report of the Committee on the Judiciary

accompanying the 1976 Copyright Law revision:

Use of the phrase “to authorize” is intended

to avoid any questions as to the liability of

contributory infringers. For example, a

person who lawfully acquires an authorized

copy of a motion picture would be an

infringer if he or she engages in the

business of renting it to others for purposes

of unauthorized public performance.

H.R. Rep. No. 94-1476, at 61 (1976). As Nimmer

notes, “Congress’ use of the phrase ‘to authorize’

establishes the liability of one who does no more

than cause or permit another to engage in an

infringing act.” 3 Melville B. Nimmer & David

Nimmer, Nimmer on Copyright § 12.04[A] (2025).

According to Nimmer, the pre-1976 cases holding

secondary infringers liable support the conclusion

that the principles set forth in those cases remained

good law after the current Act’s passage. Id.

In 1984, the Supreme Court decided SonyBetamax, 464 U.S. 417. There, the Court considered

whether the manufacturer of the Betamax

videocassette recorder was liable for contributory

infringement because consumers could use the

recorder to videotape copyrighted television

programming. In answering the question in the

negative, the Court stressed that the only contact

between the defendant and its customers occurred at

the moment of sale and ended thereafter. Id. at 43738. Because the Betamax was a “staple article of

commerce” capable of substantial noninfringing

uses, the Court believed that a finding of

contributory infringement would have required the

defendant to stop all sales of the Betamax, or at least

pay a royalty to the copyright holder. On the facts

before it, the Court expressed concern that if the

manufacturer of the Betamax were deemed a

contributory infringer, the copyright owner could

impede legitimate uses of products—an improper

extension of the copyright owner’s rights, according

to the majority. Id. at 440-42.

Nowhere does Sony-Betamax explicitly or

implicitly repudiate the knowing-and-materialcontribution prong as articulated in Gershwin. On

the contrary, the Court cited Henry v. A.B. Dick,

discussed above, from which the materialcontribution prong developed. Id. at 441. The Court

stated:

[T]he label “contributory infringement” has

been applied in a number of lower court

relationship between the direct infringer

and the contributory infringer at the time

the infringing conduct occurred.

Id. at 437 (emphasis added). Unlike the defendant in

Sony-Betamax—which sold discrete products—

Cox’s relationship with its customers is ongoing at

the time the infringing conduct occurs. Indeed, Cox

collects periodic subscription fees as a prerequisite

to continuing this ongoing service. So, unlike the

manufacturer of the Betamax, Cox could have

terminated dishonest customers—i.e., known repeat

infringers—while at the same time allowing other

customers to continue using its service. The explicit

policy justifications underlying the Sony-Betamax

decision are therefore entirely absent here. Indeed,

the Court’s reference to an ongoing relationship at

the time of infringement supports liability in this

case.2

After Sony-Betamax, the courts continued to

follow Gershwin’s formulation of contributory

infringement. In 1996, the Ninth Circuit decided

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

2 Because Cox has an ongoing relationship with its

customers at the time of infringement, the staple-article-ofcommerce discussion in Sony-Betamax is inapposite. Amicus

notes, however, that the Court’s reference to staple articles of

commerce and substantial noninfringing uses “came in a

discussion of the proof-of-knowledge prong, not the proof of

material contribution prong.” 6 William F. Patry, Patry on

held that where a product has substantial noninfringing uses,

a court will not automatically assume constructive knowledge

of infringement occurring after a sale. Cox had actual

knowledge of infringement (which it does not dispute), such

that liability would attach despite the existence of noninfringing uses.

(9th Cir. 1996), in which a swap-meet owner, with

knowledge of the infringing sales of counterfeit

sound recordings, provided the site and facilities to

third parties who sold the infringing works.

Rejecting the lower court’s ruling that the defendant

could be liable only for inducement or concealment

of the primary infringer’s identity, the court held

that providing the site and facilities for known

infringing activity is sufficient to establish

contributory liability. Id. at 264 (citing Columbia

Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59,

62 (3d Cir. 1986)) (a person who knowingly makes

available other requisites of infringement is a

contributory infringer). So, as of the mid-1990s, and

after

Sony-Betamax,

knowing,

material

contribution—in the form of providing the site and

facilities for infringement—continued to give rise to

secondary liability.

When Enacting the DMCA, Congress

Confirmed the Applicability of Cases

Holding that Knowingly Providing the

Means for Primary Infringement

Constitutes Contributory Infringement.

In 1998, Section 512 of the DMCA took effect.

That statute exempts internet service providers

(“ISPs”) like Cox from monetary damages for users’

infringements through qualified “safe harbors,” so

long as the ISP meets certain requirements. The

section “preserve[d] strong incentives for service

providers and copyright owners to cooperate to

detect and deal with copyright infringements that

take place in the digital networked environment.” S.

Rep. No. 105-190, at 20 (1998).

According to the legislative history of section

512, the liability of an ISP that (like Cox here) failed

to take advantage of the safe harbor provisions

“would be adjudicated based on the doctrines of

direct, vicarious or contributory liability for

infringement as they are articulated in the

interpreting and applying that statute, which are

unchanged by new Section 512.” H.R. Rep. No. 105551, pt. 2, at 64 (1998) (emphasis added). Congress

thus reaffirmed the vitality of the existing law,

which included the holdings in Fonovisa and Aveco

that one who knowingly supplies the site and

facilities for copyright infringement is liable as a

contributory infringer.

By their arguments, Cox and its friends would

render this statute superfluous. Quite simply, no

ISP would need to avail of itself of the DMCA safe

harbors,

and

infringement—not

addressable by filing lawsuits against tens of

millions of direct infringers—could run rampant,

thereby depriving copyright holders of their valuable

property rights, depriving consumers of a

marketplace of expressive works, and working

significant harm on the U.S. economy.

The Court’s Grokster Opinion Yet Again

Confirmed Established Law.

In 2005, the Supreme Court in Grokster, 545

U.S. 913, reaffirmed the principle that material

contribution with knowledge of the infringement

gives rise to secondary liability. There, the Court

considered whether purveyors of software that

allowed users to infringe copyrighted works were

secondarily liable as contributory infringers. At the

outset, the Grokster opinion cited Justice

Blackmun’s dissent in Sony-Betamax as accurately

characterizing doctrines of secondary liability that

“are well established in the law.” Id. at 930-31 (citing

Sony-Betamax, 464 U.S. at 486 (Blackmun, J.,

dissenting)). In turn, Justice Blackmun favorably

quoted Gershwin for the proposition that “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.” 464 U.S. at 487 (quoting

Gershwin, 443 F.2d at 1162). So, to the extent that

Cox and some of its supporting amici argue that

Grokster repudiated or limited the applicability of

Gershwin’s material-contribution prong, they

misread the opinion and attempt to import factors

into a secondary liability analysis for which there is

no precedent.

In fact, Grokster had no occasion to consider

material contribution at all. Rather, “[t]he issue of

material contribution was not reached by the

Supreme Court in vacating and remanding this

decision since the Court found liability based on

inducement.” 6 Patry on Copyright § 21:48.

Inducement is a stand-alone, separate form of

secondary liability, along with contributory

infringement and vicarious liability. See Grokster,

supra; Columbia Pictures Indus., Inc. v. Fung, 710

F.3d 1020, 1032 (9th Cir. 2013). See also 3 Nimmer

on Copyright § 12.04[A][5][a] (noting that Grokster

“created an additional branch [of secondary

liability], i.e., inducement”). Inducement theory as

articulated in Grokster is neither a necessary

element of contributory infringement nor a

repudiation of the knowing-and-material contribution variant of contributory infringement.

Although Cox and certain supporting amici

characterize its role in the infringing conduct as

“passive,” there is nothing passive about knowingly

providing known copyright infringers with the very

means, site, and facilities they need to continue

infringing. As one commentator has said in

discussing UMG Recordings, Incorporated v. Grande

Communications Networks, L.L.C., 118 F.4th 697

(5th Cir. 2024), a case factually on all fours with this

one in which the court found contributory

infringement, “[t]his result is correct and was easy

to reach, given defendant’s decision to offer its

services to serial infringers.” 6 Patry on Copyright §

21:48.

Finally, nothing in Twitter v. Taamneh, 598

U.S. 471, nor Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos, 605 U.S. 280, is to the

contrary. Cox first tries to leverage these opinions in

arguing that, by analogy, if Congress wanted to

impose contributory infringement in a case like this,

it would have done so by statute. Opening Br. 46.

The analogy is false. Cox and its amici fail to

appreciate that, for the reasons discussed above,

Congress has spoken and has imposed such a duty

by virtue of the “to authorize” language in section

106 of the Copyright Act and section 512 of the

DMCA; the legislative history of those statutes; and

long-settled case law.

Moreover, both Twitter and Smith & Wesson

are distinguishable. Most importantly, neither

implicated

law’s

free

speech

underpinnings, which require a broad application of

contributory infringement to ensure the creation

and dissemination of expressive works to the

consuming public.

Both cases are also factually distinguishable.

Unlike Cox, the defendants in Twitter and Smith &

Wesson did not directly provide the actual

wrongdoer with the means, sites, or facilities used to

commit the ultimate wrong. In Twitter, the

defendant had no knowledge of the specific planned

terrorist attack. And the attack bore no direct

relationship to the allegedly unlawful posts. In

Smith & Wesson, the relationship of the

perpetrators and Smith & Wesson ended at the point

of sale; the plaintiff identified no specific act or

wrongdoing caused by Smith & Wesson’s conduct;

and Smith & Wesson sold to distributors, not the

retailers who supposedly sold guns to drug cartels,

much less to the cartels themselves. In other words,

the chain of causation was tenuous and speculative

at best.

Here, in contrast, Cox directly provides the

direct infringers the means to infringe. And Cox has

an ongoing relationship with those infringers at the

time of the infringement.

IV. COX ACTED WILLFULLY—A CONCLUSION

ESSENTIAL

PROMOTING

As discussed in Respondent Sony’s brief and

elsewhere, by any standard, Cox is a willful

infringer. See, e.g., Resp. Br. 44-50; Brief of Amicus

Curiae AIPLA, 13-15. Cox knew that it was

facilitating massive copyright infringement yet

continued to provide its service to the infringers.

Under the well-established law governing secondary

liability, Cox clearly knew that

constituted copyright infringement.

its

conduct

An award of statutory damages that considers

Cox’s willfulness is particularly important to further

example, one study notes that “[u]nlicensed access

to music is still widespread, with a 2021 IFPI survey

reporting that 30% of respondents used copyright

infringing, or pirated, methods to listen to or obtain

music.” Unlocking Creativity at 22 (citing IFPI,

Engaging with Music: 2021 (2021)). Moreover, the

U.S. Chamber of Commerce and NERA “have

estimated reductions in revenues to [U.S.] content

producers through digital video piracy to be between

$29 billion and $71 billion per year, with job losses

of around 230,000 to 560,000 jobs and annual GDP

costs of between $48 billion and $115 billion.”

Unlocking Creativity at 22 (citing David Blackburn,

Jeffery Eisenach, and David Harrison, Impacts of

Digital Video Piracy on the U.S. Economy, NERA

Economic Consulting and the U.S. Chamber of

Commerce (2019)). In light of the staggering adverse

impact that copyright infringement has on creators

and distributors of copyrighted works like Amicus’s

members—and ultimately on the consuming

public—a consideration of Cox’s willfulness in

assessing statutory damages manifestly serves the

purpose of copyright.

CONCLUSION

The longstanding common law and subsequent

legislative enactments reaffirm that where a party

like Cox Communications knowingly and materially

contributes to copyright infringement, that party is

secondarily liable. To hold otherwise would not only

render section 512(a) of the DMCA superfluous—as

Sony and other amici establish—but would also

severely hinder the creation and dissemination of

expressive works, all to the determinant of the

consuming public and the nation’s economy. Amicus

urges that the Court of Appeals’ judgment be

affirmed.

Respectfully submitted,

ERIC J. SCHWARTZ

MITCHELL SILBERBERG &

KNUPP LLP

1818 N Street, NW

7th Floor

Washington, DC 20036

ROBERT ROTSTEIN

Counsel of Record

ELEANOR M. LACKMAN

JAMES D. BERKLEY

MITCHELL SILBERBERG &

KNUPP LLP

2049 Century Park East

18th Floor

Los Angeles, CA 90067

(310) 312-2000

rxr@msk.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.