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,
v.
Petitioners,
SONY MUSIC ENTERTAINMENT, et al.,
Respondents.
————
On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
BRIEF OF AMICI CURIAE
ASSOCIATION OF AMERICAN PUBLISHERS, INC.
& NEWS/MEDIA ALLIANCE
IN SUPPORT OF RESPONDENTS
————
CYNTHIA S. ARATO
Counsel of Record
WILLIAM I. TAYLOR
SHAPIRO ARATO BACH LLP
1140 Avenue of the Americas
17th Floor
New York, New York 10036
(212) 257-4882
carato@shapiroarato.com
Counsel for Amici Curiae
October 22, 2025
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... iv
INTEREST OF AMICI CURIAE ................................. 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ................................................................ 6
I. Copyright Law Fuels the Publishing
Industries’ Significant Contributions to the U.S.
Economy and Society ............................................... 6
II. Preserving Contributory Liability Is Essential
to Protecting Intellectual Property in Publishing
Industries ................................................................. 8
A. In the digital world, pursuing claims for
contributory infringement by material
contribution is often the only practical way to
halt rampant infringement .................................. 9
B. Copyright owners of textual works have long
relied on the doctrine of contributory copyright
infringement by material contribution to halt
infringement of their works ............................... 12
III. The Longstanding Doctrine of Contributory
Infringement Through Material Contribution Is a
Key Component of Copyright Law ........................ 19
iii
A. Contributory infringement liability based on
material contribution is rooted in bedrock
common-law principles and well-established
precedent ............................................................. 19
B. The Court’s precedents support “material
contribution” as a basis for secondary liability . 24
C. Statutory copyright law confirms the
viability of contributory infringement liability by
material contribution ......................................... 28
IV.
Dismantling Contributory Copyright
Infringement by Material Contribution Would Gut
Online Service Providers’ Incentives to Remove
Infringement .......................................................... 31
CONCLUSION .......................................................... 37
iv
TABLE OF AUTHORITIES
Cases
Page(s)
A&M Records., Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) ......................... 22 –24
Alcatel USA, Inc. v. DGI Techs., Inc.,
166 F.3d 772 (5th Cir. 1999) .................................. 20
ALS Scan, Inc. v. RemarQ Communities, Inc.,
239 F.3d 619 (4th Cir. 2001) .................................. 29
American Chemical Society v. ResearchGate GmbH,
No. 8:18-cv-03019-GJH (D. Md. 2023)................... 14
Bedford, Freeman & Worth Publishing Group v.
Shopify,
No. 1:21-cv-01340-CMH-JFA (E.D. Va. 2022)....... 14
Bridgeport Music, Inc. v. Rhyme Syndicate Music,
376 F.3d 615 (6th Cir. 2004) .................................. 20
Capitol Recs., LLC v. Vimeo, LLC,
826 F.3d 78 (2d Cir. 2016)...................................... 31
Casella v. Morris,
820 F.2d 362 (11th Cir. 1987) ................................ 20
Concord Music Group, Inc. v. Anthropic PBC,
No. 24-cv-03811-EKL (N.D. Cal 2025) .................. 14
Ellison v. Robertson,
357 F.3d 1072 (9th Cir. 2004).................................... 13
v
Energy Intelligence Group, Inc. v. Jefferies, LLC,
101 F. Supp.3d 332 (S.D.N.Y. 2015) ...................... 15
Fonovisa, Inc. v. Cherry Auction, Inc.,
76 F.3d 259 (9th Cir. 1996) ........... 19 –21, 23, 27, 33
Gershwin Publishing Corp. v. Columbia Artists
Management, Inc.,
443 F.2d 1159 (2d Cir. 1971)............... 19 –21, 24, 25
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ................................................ 28
Greer v. Moon,
83 F.4th (10th Cir. 2023) ........................................... 13
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) ........................................ 7, 8, 36
Leonard v. Stemtech Int’l Inc.,
834 F.3d 376 (3d Cir. 2016).................................... 20
Malwarebytes, Inc. v. Enigma Software Grp. USA,
LLC,
141 S. Ct. 13 (2020) ................................................ 35
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005) ............................. 10, 12, 20, 24
Nye & Nissan v. United States,
336 U.S. 613 (1949) ................................................ 25
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ......................... 23 –25
vi
RCA Records v. All-Fast Sys., Inc.,
594 F. Supp. 335 (S.D.N.Y. 1984) .......................... 21
Religious Technology Center v. Netcom On-line
Communication Services,
907 F. Supp. 1361 (N.D. Cal. 1995) ........... 16, 22, 24
Screen Gems-Columbia Music, Inc. v. Mark Fi
Records, Inc.,
256 F. Supp. 399 (S.D.N.Y. 1966) .............. 20–22, 25
Smith & Wesson Brands, Inc. v. Estados Unidos
Mexicanos,
605 U.S. 280 (2025) ................................................ 27
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) .......................................... 19, 25
Sony Ent. v. Cox Commc’ns, Inc.,
93 F.4th 222 (4th Cir. 2024) .................................. 20
Twitter, Inc. v. Taamneh,
598 U.S. 471 (2023) .......................................... 25–27
UMG Recordings Inc. v. Grande Commc’ns Networks,
LLC,
118 F.4th 697 (5th Cir. 1963) ................................ 25
Williams v. Scribd, Inc.,
No. 09CV1836-LAB-WMC, 2010 WL 10090006
(S.D. Cal. June 23, 2010) ....................................... 15
vii
Statutes
17 U.S.C. § 106..................................................... 26, 28
17 U.S.C. § 512....................................... 4, 9, 16, 28, 29
18 U.S.C. § 2333(a) .................................................... 26
47 U.S.C. § 230........................................................... 35
Other Authorities
AAP StatShot Annual Report: Publishing Revenues
Totaled $32.5 Billion for Calendar Year 2024,
Association of American Publishers (Aug. 26, 2025),
https://publishers.org/news/aap-statshot-annualreport-publishing-revenues-totaled-32-5-billion-forcalendar-year-2024/.................................................. 7
Adam Grundy, Service Annual Survey Shows
Continuing Decline in Print Publishing Revenue,
U.S. CENSUS BUREAU, (June 7, 2022),
https://www.census.gov/library/stories/2022/06/inte
rnet-crushes-traditional-media.html....................... 7
Amy Watson, Estimated Aggregate Revenue of U.S.
Periodical Publishers from 2005 to 2021 STATISTA
(June. 25, 2021),
https://www.statista.com/statistics/184055/estimate
d-revenue-of-us-periodical-publisherssince-2005/ ................................................................ 6
viii
Association of American Publishers, Comments
Submitted in Response to U.S. Copyright Office’s
Dec. 31, 2015, Notice of Inquiry (Feb. 21, 2017),
https://downloads.regulations.gov/COLC-20150013-92453/attachment_1.pdf ............................... 16
Blake E. Reid, Uncommon Carriage,
76 STAN L. REV. 89 (2024) ...................................... 33
Brian McGrory, Spotlight: 50 years of groundbreaking
investigative journalism, THE BOSTON GLOBE,
https://www.bostonglobe.com/spotlight-50thanniversary/............................................................ 18
DMCA (Copyright) Complaint to Github,
LUMEN (JULY 30, 2020),
https://lumendatabase.org/notices/46087831 ........ 17
DMCA (Copyright) Complaint to Google,
LUMEN (MAR. 11, 2024),
https://lumendatabase.org/notices/40054913 ........ 17
DMCA (Copyright) Complaint to Google,
LUMEN (Mar. 12, 2024),
https://lumendatabase.org/notices/40097522 ........ 17
DMCA (Copyright) Complaint to Google,
LUMEN (Mar. 3, 2025),
https://lumendatabase.org/notices/49622376 ........ 17
DMCA (Copyright) Complaint to Google,
LUMEN (Mar. 9, 2022),
https://lumendatabase.org/notices/26963031 ........ 17
ix
DMCA (Copyright) Complaint to Google,
LUMEN (Nov. 25, 2024),
https://lumendatabase.org/notices/46625560 ........ 17
DMCA (Copyright) Complaint to Google,
LUMEN (Oct. 16, 2024),
https://lumendatabase.org/notices/45455143 ........ 17
DMCA (Copyright) Complaint to Google,
LUMEN, (Dec. 13, 2024),
https://lumendatabase.org/notices/47163588 ........ 17
E-mail from Facebook to Lucas Uhl
(Apr. 4, 2025) .................................................... 17, 18
E-mail from Reddit Support to Lucas Uhl
(Feb. 20, 2025) ........................................................ 17
GOOGLE TRANSPARENCY REPORT,
https://transparencyreport.google.com/copyright/do
mains/dnyuz.com?hl=en_GB&request_by_org=size:
10;domain:dnyuz.com;p:Mjpkbnl1ei5jb206MTA6M
DoxMA&lu=request_by_org................................... 17
H.R. Rep. No. 105-551 (1998) .................................... 31
H.R. Rep. No. 105-796 (1998) ........................ 29, 31, 32
H.R. Rep. No. 94-1476 (1976) .................................... 28
Marybeth Peters, The Challenge of Copyright in the
Digital Age, 9 REV. PROP. INMATERIAL (2006) ....... 11
x
Melissa De Witte, Stanford Scholars Are Helping
Journalists Do Investigative Journalism through
Data, STANFORD REPORT (Oct. 15, 2018),
https://news.stanford.edu/stories/2018/10/helpingjournalists-use-data-investigative-reporting .......... 8
MUSO, The Publishing Industry Piracy Report 2022
(Mar. 2023),
https://activelex.com/wpcontent/uploads/2024/02/MUSO-2022-PublishingPiracy-Report.pdf ................................................... 11
Nancy L. Maron et al., The Costs of Publishing
Monographs: Toward a Transparent Methodology,
ITHAKA S+R (Feb. 5, 2016),
https://sr.ithaka.org/publications/the-costs-ofpublishing-monographs/ .......................................... 8
Newspapers Fact Sheet, PEW RSCH. CTR.
(Nov. 10, 2023),
http://www.journalism.org/fact- sheet
/newspapers/ ............................................................. 6
Peter Osnos, These Journalists Spent Two Years and
$750,000 Covering One Story, THE ATLANTIC (Oct.
2, 2013),
https://www.theatlantic.com/national/archive/2013/
10/these-journalists-spent-two-years-and-750-000covering-one-story/280151/ ...................................... 7
xi
Reviving Competition, Part 2: Saving the Free and
Diverse Press Before the Subcomm. on Antitrust,
Commercial, and Administrative Law of the H.
Comm. on the Judiciary,
117th Cong. 112 (2021) .................................... 35, 36
Richard G. Kunkel, Indifference and Secondary
Liability for Copyright Infringement, 33 SANTA
CLARA HIGH TECH. L.J. (2016) ............................... 10
S. Rep. No. 105-190 (1998) .................................. 30, 32
The Cost of a Journalism Story, MYNEWSDESK BLOG
(Sep. 6, 2018),
https://www.mynewsdesk.com/en/blog/the-cost-of-ajournalism-story/ ...................................................... 8
U.S. COPYRIGHT OFF., SECTION 512 OF TITLE 17, A
REPORT OF THE REGISTER OF COPYRIGHTS 21 (2020),
https://www.copyright.gov/policy/section512/section
-512-full-report.pdf ..................................... 29, 30, 34
Zach Metzger, The State of Local News: The 2024
Report, NORTHWESTERN UNIV.,
https://localnewsinitiative.northwestern.edu/project
s/state-of-local-news/2024/report/ .......................... 35
INTEREST OF AMICI CURIAE
The Association of American Publishers, Inc.
(“AAP”) is a not-for-profit organization that
represents the leading book, journal, and education
publishers in the United States on matters of law
and policy, advocating for outcomes that incentivize
the publication of creative expression, professional
content, and learning solutions. AAP’s membership
includes approximately 115 individual members who
range from major commercial book and journal
publishers to small, nonprofit, university, and
scholarly presses, as well as leading publishers of
educational materials and digital learning platforms.
AAP’s members have a direct and compelling
interest in the efficacy, administration, and
enforcement of federal copyright laws. AAP seeks to
promote effective and enforceable legal frameworks
that enable publishers to create and disseminate a
wide array of original works of authorship to the
public on behalf of their authors and in furtherance
of informed speech and public progress.
The News/Media Alliance (“N/MA”) is a
nonprofit organization representing over 2,200
publishers in the United States, ranging from the
largest news and magazine publishers to hyperlocal
newspapers, and from digital-only outlets to papers
who have printed news since the nation’s founding.
Covering all subject matter and political viewpoints,
the N/MA’s membership accounts for nearly 90
2
percent of the daily newspaper circulation in the
United States, over 500 individual magazine brands,
and dozens of digital-only properties. Their business
models and continued ability to invest in highquality journalism and content production rely on
the resolute enforcement of their intellectual
property rights, particularly copyright. For that
reason, N/MA is deeply invested in assuring the
courts properly articulate and apply the law of
copyright.
The ability of AAP and N/MA’s members to
meaningfully protect their intellectual property,
including by holding accountable actors who
knowingly and materially contribute to others’ direct
infringement, is a matter of significant importance to
AAP and N/MA (“Amici”) and their members. AAP
and N/MA respectfully submit this brief in support of
Respondents and limited to question 1: whether Cox
is liable for contributory infringement because it
materially contributed to its subscribers’ copyright
infringement. Although this case arises under a
specific set of facts, the legal doctrines at issue apply
broadly, and Amici submit this brief to provide the
broader context regarding the foundations, history,
and application of the material contribution doctrine.
Amici urge the Court to uphold the longstanding
doctrine that one who knowingly and materially
3
contributes to copyright infringement is liable as a
contributory infringer. 1
SUMMARY OF ARGUMENT
Copyright law forms the economic backbone of
the news, media, journal, education, and book
publishing industries. Guaranteeing publishers a
marketable right for the use of their high-quality,
expressive works, copyright generates the resources
needed to produce the works that inform and
entertain the public, educate students, advance
science and culture, and help people understand the
world. But the continued sustainability of the
publishing industries is imperiled in today’s digital
age, where publishers’ works are increasingly being
pirated online, often at a massive scale, by direct
infringers who hide their identities or reside in
countries where they cannot be sued. Publishers
depend on the longstanding doctrine of contributory
infringement to ensure that the world’s largest
technology companies have the right incentives to
not facilitate infringers who would steal publishers’
works, usurp their business models, and deprive
them of the fair compensation needed for their
continued viability and growth.
1 Pursuant to Rule 37.6, no counsel for a party authored this
brief in whole or in part, and no person or entity other than
amici and their counsel made a monetary contribution to its
preparation or submission.
4
The doctrine of contributory copyright
infringement by material contribution is firmly
rooted in bedrock common-law principles, has been
long recognized in federal precedent, and is reflected
in the federal copyright statutes. For decades, federal
law has appropriately recognized that actors who
knowingly and materially contribute to
infringement—thus satisfying the twin requirements
of knowledge and substantial assistance found in
common law—are liable for contributory copyright
infringement. And the doctrine has become
increasingly important in today’s online
environment, where online service providers of all
types are often in the best position to halt
infringement on their platforms, whether by
removing infringing content, suspending direct
infringers, or terminating repeat infringers.
This doctrine is also a cornerstone
underpinning the safe harbor/notice-and-takedown
regime enacted in the Digital Millenium Copyright
Act (“DMCA”). That regime incentivizes online
service providers to cooperate with rightsholders to
remove infringing content from their platforms and
services so they may avoid liability for contributory
copyright infringement—often based on material
contribution. While the DMCA is not perfect, its
contours have shaped the development of the modern
internet, creating a structure for copyright owners to
obtain recourse from social media platforms, website
hosts, and others who would otherwise profit from
5
providing third-party infringing content to the
public. But an online service provider who no longer
faces secondary liability for materially contributing
to infringement would have no reason to avail itself
of the DMCA’s safe harbor provisions. Eliminating or
narrowing material contribution as a basis for
contributory infringement liability would eviscerate
the Congressionally-crafted safe harbor protections
and further upset the balance Congress sought to
strike between the rights of copyright owners and
online service providers.
Eliminating or narrowing the material
contribution doctrine would also have implications
far beyond internet service providers and their
obligations to terminate repeat infringers. Online
platforms, including social media apps and ecommerce marketplaces, would be emboldened to
abandon their efforts to comply with the DMCA’s
safe harbor regime, honor takedown requests, and
halt rampant infringement to which they are
contributing.
In short, without liability for contributory
infringement, publishers’ rights would be gutted in
the digital space, burdening rightsholders with
endless, cost-prohibitive, and ineffective direct
enforcement actions against elusive foreign
infringers, further tilting the marketplace against
responsible publishers. The Court should reaffirm
the well-established precedent that one who
6
knowingly and materially contributes to
infringement is liable as a contributory infringer.
ARGUMENT
I.
Copyright Law Fuels the Publishing
Industries’ Significant Contributions to
the U.S. Economy and Society
This country’s vibrant news, media, journal,
education, and book publishing industries are a core
part of the creative economy. They advance
scholarship and lifelong learning, promote free
expression, and foster the democratic exchange of
ideas. They do so through organizations, authors,
journalists, scientists, and educators who produce
expressive works that define our culture, support our
democracy, educate our children, drive advancement
in science and medicine, and enhance our daily lives,
informing and inspiring the communities they serve.
In addition to their creative and civic
contributions, these publishing industries are also
essential participants in and contributors to local
markets and the national economy. Newspaper and
magazine publishers have estimated annual
revenues amounting to approximately $45 billion. 2
2 See Newspapers Fact Sheet, PEW RSCH. CTR. (Nov. 10, 2023),
http://www.journalism.org/fact- sheet/newspapers/; Amy
Watson, Estimated Aggregate Revenue of U.S. Periodical
Publishers from 2005 to 2021, STATISTA (June. 25, 2021),
https://www.statista.com/statistics/184055/estimated-revenueof-us- periodical-publishers-since-2005/; Adam Grundy, Service
7
The U.S. publishing industry for books and course
materials, meanwhile, generated an estimated $32.5
billion last year in aggregate revenue. 3
Copyright enables these significant
contributions. “By establishing a marketable right to
the use of one’s expression, copyright supplies the
economic incentive to create and disseminate ideas.”
Harper & Row Publishers, Inc. v. Nation Enters., 471
U.S. 539, 558 (1985). It is thus the “engine of free
expression.” Id. Publishers’ ability to continue
contributing to our nation’s creativity, civil discourse,
and economy depends on their ability to receive fair
compensation for the high quality original expressive
content they have developed—at high cost 4—
Annual Survey Shows Continuing Decline in Print Publishing
Revenue, U.S. CENSUS BUREAU, (June 7, 2022),
https://www.census.gov/library/stories/2022/06/internetcrushes-traditional-media.html.
3 AAP StatShot Annual Report: Publishing Revenues Totaled
$32.5 Billion for Calendar Year 2024, Association of American
Publishers (Aug. 26, 2025), https://publishers.org/news/aapstatshot-annual-report-publishing-revenues-totaled-32-5billion-for-calendar-year-2024/.
4 Generally, publishers in any sector face high fixed costs that
are incurred prior to publication. See, e.g., Peter Osnos, These
Journalists Spent Two Years and $750,000 Covering One Story,
THE ATLANTIC (Oct. 2, 2013),
https://www.theatlantic.com/national/archive/2013/10/thesejournalists-spent-two-years-and-750-000-covering-onestory/280151/ (“We conservatively estimate the cost of this
coverage at $750,000; it could be more. This covers the
reporters, news applications and web developers, editors, video
8
including the ability to halt the piracy of their works.
Without meaningful tools to stop such infringement,
including through the long-recognized material
contribution prong of contributory infringement, the
essential role of copyright as the “engine of free
expression” will be undermined. Harper & Row
Publishers, 471 U.S. at 558.
II.
Preserving Contributory Liability Is
Essential to Protecting Intellectual
Property in Publishing Industries
Because of the unique scale and dynamics of
online infringement, preserving contributory liability
based on material contribution is essential to
production, social media and PR, travel, legal review, half of the
public opinion poll etc.); Melissa De Witte, Stanford Scholars
Are Helping Journalists Do Investigative Journalism through
Data, STANFORD REPORT (Oct. 15, 2018),
https://news.stanford.edu/stories/2018/10/helping-journalistsuse-data-investigative-reporting (“[I]t can cost newsrooms up to
$300,000 and six months of a reporter’s time to do a deep dive
into public interest issues like crime and corruption. In one
case, it cost a newsroom $487,000 to produce an investigative
series on local police shootings.”); The Cost of a Journalism
Story, MYNEWSDESK BLOG (Sep. 6, 2018),
https://www.mynewsdesk.com/en/blog/the-cost-of-a-journalismstory/ (estimating the cost of a newsmaker story at $400$12,000, news stories at $100-$4,500, and filler stories at $50$300 each); Nancy L. Maron et al., The Costs of Publishing
Monographs: Toward a Transparent Methodology, ITHAKA
S+R (Feb. 5, 2016), https://sr.ithaka.org/publications/the-costsof-publishing-monographs/ (finding that the publishing costs
per academic monograph across 20 university presses ranged
“from a low of $15,140 to a high of $129,909”).
9
ensuring rightsholders’ ability to meaningfully
combat online piracy. This is particularly true for
Amici’s members in the news, media, journal,
education, and book publishing industries, whose
works are increasingly being pirated online, often at
massive scale, by direct infringers who are difficult
to identify or sue. Amici’s members have regularly
relied on the contributory infringement by material
contribution standard to secure needed protection
from a wide variety of OSPs against rampant online
piracy, including through formal litigation and
sending notice-and-takedown letters under Section
512 of the DMCA. They will be left essentially
without any meaningful remedy should the Court
extinguish or significantly limit the material
contribution theory of contributory copyright
infringement.
A. In the digital world, pursuing claims for
contributory infringement by material
contribution is often the only practical way
to halt rampant infringement
Given the scale of online infringements and
the actors involved, it is exceedingly difficult, if not
impossible, for rightsholders to combat online
infringement solely through claims against direct
infringers. Digital technology facilitates the
instantaneous copying and distribution of content at
a massive scale, across borders, and at
infinitesimally low cost. Thus, as the Court
10
recognized in Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., “[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, the only
practical alternative being to go against the
distributor of the copying device for secondary
liability on a theory of contributory or vicarious
infringement.” 545 U.S. 913, 929-30 (2005). One
commenter has noted, “Internet intermediaries, such
as Internet Service Providers (ISPs), peer-to-peer
networks, user-generated content platforms and
technology providers enable copyright infringement
on such a large scale that lawsuits against
individuals for direct infringement is impracticable.”
Richard G. Kunkel, Indifference and Secondary
Liability for Copyright Infringement, 33 SANTA CLARA
HIGH TECH. L.J. 1, 2-3 (2016).
This is especially true for the publishing
industry, which has seen a dramatic surge in digital
piracy. According to the 2022 Publishing Industry
Piracy Report, in 2022 alone, there were over 59
bdmillion visits to websites providing pirated
published works—a 37% increase over the prior year.
The report also documents a 201% increase in piracy
demand since 2017, with publishing piracy now
surpassing film piracy in global web traffic volume.
See MUSO, The Publishing Industry Piracy Report
2022 (Mar. 2023), https://activelex.com/wp-
11
content/uploads/2024/02/MUSO-2022-PublishingPiracy-Report.pdf.
Scale is not the only challenge making direct
infringement actions impracticable. Many direct
infringers operate anonymously online, are in
jurisdictions where enforcement is difficult or
impossible, or are judgment-proof. As former
Register of Copyrights Marybeth Peters explained:
“It is quite difficult for copyright owners to identify,
locate, and bring enforcement actions against the
vast number of individuals who might be infringing
their works. And even if the owners could bring such
actions, it is unlikely that such individuals would be
able to pay for the damage their actions have
caused.” Marybeth Peters, The Challenge of
Copyright in the Digital Age, 9 REV. PROP.
INMATERIAL 1, 59, 65 (2006).
In this environment, imposing liability for
contributory copyright infringement by material
contribution is a critical deterrent and remedy.
Rightsholders often do the difficult work of
monitoring for online infringement of their works
and identifying those instances of infringement for
online service providers, who are well-positioned to
take action against the identified infringements.
Failure to do so by continuing to supply services used
for the infringement with knowledge of that
infringement should be sufficient for secondary
liability; rightsholders should not be precluded from
12
seeking relief simply because other theories of
liability exist that turn on other types of proof. 5
Without accountability for digital platforms,
networks, and services that knowingly facilitate
access to or distribution of infringing content,
rightsholders would face insurmountable hurdles to
enforcement and would be effectively deprived of the
protection and economic incentives copyright is
meant to guarantee.
B. Copyright owners of textual works have
long relied on the doctrine of contributory
copyright infringement by material
contribution to halt infringement of their
works
Rightsholders such as Amici’s members
regularly rely on the doctrine of contributory
copyright infringement by material contribution to
combat online infringement of textual content. If the
doctrine were extinguished or diminished,
rightsholders would lose a critical means of holding
rampant infringers accountable. Publishers and
authors have used the doctrine to pursue
5 Vicarious liability requires evidence of the defendant
“profiting from direct infringement while declining to exercise a
right to stop or limit it,” Grokster, 545 U.S. at 930, whereas
liability under an inducement theory requires evidence of the
defendant taking “active steps . . . to encourage direct
infringement,” id. at 936.
13
infringement claims against a wide variety of online
service providers in the following cases:
•
Greer v. Moon, 83 F.4th 1283, 1294-96 (10th
Cir. 2023), cert. denied, 144 S. Ct. 2521 (2024):
Reversing dismissal of a contributory
infringement claim against the owner of a
website whose users copied and shared the
plaintiff’s book on the site. Despite repeated
requests to remove the infringing material,
the website owner “not only expressly refused
to remove the materials,” but “mockingly
posted the [takedown request]
correspondence” to the site. Id. at 1295. The
court concluded that “reposting of the
takedown notice, combined with the refusal to
take down the infringing material” amounted
to “encourage[ment] [of] and material[]
contribut[ion] to” the direct infringement. Id.
•
Ellison v. Robertson, 357 F.3d 1072, 1077-78
(9th Cir. 2004): Affirming denial of summary
judgment for a peer-to-peer file sharing
network that made the plaintiff’s short story
accessible on its network via a user’s upload.
The court held that “a reasonable trier of fact
could conclude that [the network] materially
contributed to the copyright infringement by
storing infringing copies of [the] works” and
“providing . . . users with access to those
copies.” Id. at 1078.
14
•
Concord Music Group, Inc. v. Anthropic PBC,
No. 24-cv-03811-EKL, ECF 461 (N.D. Cal
2025): Sustaining claim for contributory
infringement by material contribution that
alleged that defendant trained its generative
artificial intelligence model on copyrighted
song lyrics, resulting in the unauthorized
output of those lyrics to third-party users. The
court noted that “[i]n the context of online
platforms,” liability may ultimately lie where
the system operator “has actual knowledge
that specific infringing material is available
using its system” yet “continues to provide
access to infringing works.” Id. at 4 (internal
quotation marks and citations omitted).
•
American Chemical Society v. ResearchGate
GmbH, No. 8:18-cv-03019-GJH, ECF 127 (D.
Md. 2023): Publishers secured a consent final
order and permanent injunction barring a filesharing network for researchers from
“encouraging, assisting, or soliciting” the
unauthorized copying and posting of scholarly
journal articles.
•
Bedford, Freeman & Worth Publishing Group
v. Shopify, No. 1:21-cv-01340-CMH-JFA, ECF
1 ¶ 1, 78, 84 (E.D. Va. 2022); see id. ECF 186
(E.D. Va. 2022): Stipulation reporting that
15
education publishers resolved suit alleging
that Shopify knowingly hosted and enabled
sellers of pirated textbooks and other
educational materials, including by offering
known infringers “storefront building,
webhosting, product fulfillment, marketing
customer support, business expertise, business
analytics, capital investment, and payment
processing” services.
•
Energy Intelligence Group, Inc. v. Jefferies,
LLC, 101 F. Supp.3d 332, 341 (S.D.N.Y. 2015):
Denying a motion to dismiss a contributory
infringement claim alleging that a defendant
“materially contributed” to the infringement
by distributing a username and password to
unauthorized users who accessed the work.
•
Williams v. Scribd, Inc., No. 09CV1836-LABWMC, 2010 WL 10090006, at *7 (S.D. Cal.
June 23, 2010): Denying a motion to dismiss a
contributory infringement claim against a
“social publishing” website that made
accessible the plaintiff’s copyrighted books via
user uploads. Allegations that the website
provided the “site and facilities” for direct
infringement and failed to remove the
infringing content were sufficient to state a
claim for contributory infringement by
material contribution. Id.
16
•
Religious Technology Center v. Netcom On-line
Communication Services, 907 F. Supp. 1361,
1374–75 (N.D. Cal. 1995): Holding that an
operator of computer bulletin board service
and internet access provider could be held
contributorily liable for allowing “infringing
messages to remain on [provider’s] system”
and for “refus[ing] to stop receiving, copying,
transmitting and publishing the postings,”
respectively. Id. at 1375, 1382; see also infra §
III(A).
Amici’s members also regularly rely on the
doctrine of contributory copyright infringement by
material contribution to request the takedown of
infringing materials from a host of online platforms,
social media sites, search engines, and other online
service providers, including under Section 512 of the
DMCA. Publishers engage in substantial efforts to
send takedown notices, and some hire antipiracy
vendors to monitor the internet for infringement and
to ensure notices are accurate and compliant. 6 While
the DMCA’s notice-and-takedown procedure relies on
the background deterrent of litigation (see infra §
IV), in practice, pre-litigation cooperative
6 See Association of American Publishers, Comments Submitted
in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of
Inquiry, at 35-37 (Feb. 21, 2017),
https://downloads.regulations.gov/COLC-2015-001392453/attachment_1.pdf.
17
enforcement is the most effective tool available to
rightsholders.
For example, the New York Times, Boston
Globe, and Los Angeles Times have each successfully
utilized takedown requests to get verbatim
infringing articles, video content, and pirated
“mirror” sites (or links thereto) removed from the
internet and online platforms including Google,
Github, Facebook and Reddit. 7 Through this
mechanism, valuable journalism ranging from prizewinning investigative reporting to full-mirror sites of
the Los Angeles Times, to scores of individual articles
7 See, e.g., DMCA (Copyright) Complaint to Google, LUMEN
(Mar. 3, 2025), https://lumendatabase.org/notices/49622376;
DMCA (Copyright) Complaint to Google, LUMEN, (Dec. 13,
2024), https://lumendatabase.org/notices/47163588; DMCA
(Copyright) Complaint to Google, LUMEN (Nov. 25, 2024),
https://lumendatabase.org/notices/46625560; DMCA (Copyright)
Complaint to Google, LUMEN (Oct. 16, 2024),
https://lumendatabase.org/notices/45455143; DMCA (Copyright)
Complaint to Google, LUMEN (Mar. 12, 2024),
https://lumendatabase.org/notices/40097522; DMCA (Copyright)
Complaint to Google, LUMEN (MAR. 11, 2024),
https://lumendatabase.org/notices/40054913; GOOGLE
TRANSPARENCY REPORT,
https://transparencyreport.google.com/copyright/domains/dnyuz
.com?hl=en_GB&request_by_org=size:10;domain:dnyuz.com;p:
Mjpkbnl1ei5jb206MTA6MDoxMA&lu=request_by_org; DMCA
(Copyright) Complaint to Google, LUMEN (Mar. 9, 2022),
https://lumendatabase.org/notices/26963031; E-mail from
Facebook to Lucas Uhl (Apr. 4, 2025) (on file with the author);
E-mail from Reddit Support to Lucas Uhl (Feb. 20, 2025) (on
file with the author); DMCA (Copyright) Complaint to Github,
LUMEN (JULY 30, 2020),
https://lumendatabase.org/notices/46087831.
18
that make up the core of local and global news
coverage alike, has been protected. Recently, the
Boston Globe used DMCA takedown notices to
request that Facebook remove content that infringed
podcast episodes of the latest Spotlight series, Snitch
City, revealing police abuse of confidential
informants in Massachusetts. 8 The works of the
Spotlight team—which have won three Pulitzer
prizes for revealing scandals in Somerville politics,
MBTA, and the Catholic Church 9—is just one
example of the kind of high-quality, resourceintensive journalism that generates significant
interest, leads to real change, and has a vital role to
play in American society, but is threatened by
unauthorized uses of publisher content. Without this
tool, given the sheer number of individual
infringements and anonymous or unreachable bad
actors engaged in infringement, at times operating
from an effectively judgment-proof country,
enforcement would virtually be out of reach.
8 E-mail from Facebook to Lucas Uhl (Apr. 4, 2025) (on file with
the author).
9 See Brian McGrory, Spotlight: 50 years of groundbreaking
investigative journalism, THE BOSTON GLOBE,
https://www.bostonglobe.com/spotlight-50th-anniversary/.
19
III.
The Longstanding Doctrine of
Contributory Infringement Through
Material Contribution Is a Key
Component of Copyright Law
The doctrine of contributory infringement by
material contribution is deeply rooted in the common
law and firmly established in decades of precedent. It
has been long applied in both the digital and physical
spaces. This basis of liability is also woven into the
federal copyright statutes. It has, in short, been a
cornerstone of copyright upon which rightsholders
have relied in a variety of settings over many
decades. It should not be disrupted.
A. Contributory infringement liability based
on material contribution is rooted in
bedrock common-law principles and
well-established precedent
The doctrine of contributory liability
“originates in tort law and stems from the notion
that one who directly contributes to another’s
infringement should be held accountable.” Fonovisa,
Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th
Cir. 1996) (citing Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417, 435 (1984)). The
Second Circuit case Gershwin Publishing Corp. v.
Columbia Artists Management, Inc. provides the
seminal statement of the doctrine: “[O]ne who, with
knowledge of the infringing activity, induces, causes
or materially contributes to the infringing conduct of
20
another, may be held liable as a ‘contributory’
infringer.’” 443 F.2d 1159, 1162 (2d Cir. 1971); see
also Fonovisa, 76 F.3d at 264 (characterizing
Gershwin as the “classic statement of the doctrine”).
The Gershwin standard has been widely adopted
over many decades. See Sony Ent. v. Cox Commc’ns,
Inc., 93 F.4th 222, 233 (4th Cir. 2024) (adopting
Gershwin’s formulation), cert. granted, 145 S. Ct.
2841 (2025); Leonard v. Stemtech Int’l Inc., 834 F.3d
376, 387 (3d Cir. 2016) (same); Bridgeport Music,
Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 621
(6th Cir. 2004) (same); Alcatel USA, Inc. v. DGI
Techs., Inc., 166 F.3d 772, 790 (5th Cir. 1999) (same);
Fonovisa, 76 F.3d at 264 (same); Casella v. Morris,
820 F.2d 362, 365 (11th Cir. 1987) (same).
Under the Gershwin standard, knowingly
making a material contribution to infringement is an
independent basis for secondary liability, distinct
from inducing or causing infringement. 443 F.2d at
1162. This is not a “novel” theory. Cf. Cox Br. at 12.
Rather, the doctrines of secondary liability in
copyright law “emerged” from “common law
principles and are well established in the law.”
Grokster, Ltd., 545 U.S. at 930. The material
contribution basis for imposing contributory liability,
in particular, tracks the common law principle “that
one who knowingly participates or furthers a tortious
act is jointly and severally liable with the prime
tortfeasor.” Gershwin, 443 F.2d at 1162; see also
Screen Gems-Columbia Music, Inc. v. Mark Fi
21
Records, Inc., 256 F. Supp. 399, 403 n.9 (S.D.N.Y.
1966) (cited by Gershwin and collecting cases
standing for this common law proposition).
For decades, courts have recognized secondary
liability for material contribution with knowledge of
infringement in a variety of settings, both physical
and digital, including for products and services that
also provide commercially significant non-infringing
uses. For example, in Gershwin, the Second Circuit
held that a concert promoter was liable for “creating”
the “audience as a market” for artists who committed
direct infringement. 443 F.2d at 1162-63. In
Fonovisa, Inc. v. Cherry Auction, Inc., the Ninth
Circuit held that the operator of a swap meet—a
physical flea market for the exchange of goods—
could be contributorily liable for the sale of
infringing recordings by third-party vendors where
the operator materially contributed to the
infringement by providing “space, utilities, parking,
advertising, plumbing, and customers” for “known
infringing activity.” 76 F.3d at 264. In other words,
the operator provided the “environment and the
market for counterfeit recording sales to thrive.” Id.
These cases built upon a longstanding lineage of
caselaw holding parties liable for materially
contributing to direct infringers. See, e.g. RCA
Records v. All-Fast Sys., Inc., 594 F. Supp. 335, 339
(S.D.N.Y. 1984) (operator of duplication facility could
be held liable for selling blank cassettes to customers
whom operator knew engaged in unlawful
22
duplication); Screen Gems-Columbia Music, 256 F.
Supp. at 403-05 (radio station that allowed its
equipment to be used to broadcast advertisements
for infringing records may be held liable for
contributory copyright infringement because it
“contributed essential services in effecting and
furthering the sale of the infringing albums”).
The courts have applied this same principle to
online infringement, starting with the advent of
widespread internet use in the 1990s. In Religious
Tech. Ctr. v. Netcom On-line Commc’n Servs., Inc., a
federal district court held that an operator of a
computer bulletin board service, and the internet
service provider that facilitated its operations, could
be held contributorily liable for a subscriber’s posting
of copyrighted Scientology works. 907 F. Supp.at
1374–75, 1382. Although the plaintiff had
specifically notified these defendants of the
infringement, the internet service provider had
“allow[ed] [the] infringing messages to remain” on its
systems and to be “further distributed to other . . .
servers worldwide.” Id. at 1375. Similarly, the
bulletin board service had “refused to stop receiving,
copying, transmitting and publishing the postings.”
Id. at 1382. By these actions, the court held, the
defendants had “substantial[ly] participat[ed]” in the
direct infringement and “aid[ed] in the
accomplishment” of the infringer’s “purpose of
publicly distributing the [infringing] postings.” Id. at
1375, 1382. Similarly, in A&M Records., Inc. v.
23
Napster, Inc., the Ninth Circuit upheld an injunction
against a peer-to-peer file sharing network whose
users engaged in the unauthorized reproduction and
distribution of copyrighted works. 239 F.3d 1004,
1019 (9th Cir. 2001). As in Fonovisa, the defendant
could be held liable for providing “the site and
facilities” for known direct infringement because,
“[w]ithout the support services defendant provides,
Napster users could not find and download the music
they want.” Id. at 1022; see also Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir.
2007) (holding that a search engine could be
contributorily liable for knowingly including links to
sites containing infringing images in its search
results because it thereby “substantially assist[ed]
websites to distribute their infringing copies to a
worldwide market and assist[ed] a worldwide
audience of users to access infringing materials”).
In each of these cases, secondary liability was
found despite the capability of the defendant’s
products or services to be used for non-infringing
uses, and without requiring the plaintiff to prove
that the defendant actively encouraged or urged
infringement. For example, in Fonovisa, while the
swap meet operator hosted a variety of vendors, not
just counterfeiters, the operator materially
contributed to infringement by providing its “support
services” to the direct infringer, without which, “it
would be difficult for the infringing activity to take
place.” 76 F.3d 259, 264. Once the swap meet
24
operator was on notice of infringement, its ongoing
complicity in hosting counterfeit wares was not
excused simply because it equally provided these
support services to legitimate vendors as well. See
also Netcom, 907 F. Supp. at 1375 (finding standard
for contributory infringement met when Netcom
failed to take “simple measures” to prevent
infringement, even though Netcom’s online service
also hosted an array of non-infringing conduct and
plaintiff had not alleged that Netcom urged,
encouraged, or actively induced infringing posts);
Napster, 239 F.3d at 1021 (finding contributory
infringement by material contribution “[r]egardless
of the number of Napster’s infringing versus
noninfringing uses”); Perfect 10, 508 F.3d at 1170
n.11, 1172 (rejecting inducement claim but reversing
denial of injunction against Google based on a theory
of material contribution liability and noting that the
effect of Google’s search engine results “on copyright
owners” could not be “discount[ed],” “even though
Google’s assistance [was] available to all websites,
not just infringing ones”).
B. The Court’s precedents support “material
contribution” as a basis for secondary
liability
The Court’s precedents confirm the commonlaw theories of contributory liability that inform the
holdings and reasoning of Gershwin and its progeny.
Grokster directs courts to analyze contributory
25
liability in light of “rules of fault-based liability
derived from the common law.” 545 U.S. at 934-35.
Its reasoning is thus “consistent” with the “rule set
forth in Gershwin.” Perfect 10, 508 F.3d at 1171. In
Sony, the Court similarly explained that “the concept
of contributory infringement is merely a species of
the broader problem of identifying the circumstances
in which it is just to hold one individual accountable
for the actions of another.” 464 U.S. at 435. Most
recently, in Twitter, Inc. v. Taamneh, the Court
affirmed that secondary liability is appropriate
where an actor has “given knowing and substantial
assistance to the primary tortfeasor” and
“consciously and culpably ‘participate[d]’ in a
wrongful act so as to help ‘make it succeed.’” 598 U.S.
471, 491, 493 (2023) (quoting Nye & Nissan v. United
States, 336 U.S. 613, 619 (1949)). These common-law
principles animate Gershwin’s recognition of
knowing material contribution to infringement as a
basis for liability: that secondary copyright
infringement liability flows from “knowing[]
particiat[ion]” in a primary violation. See Gershwin,
443 F.2d at 1162; Screen Gems-Columbia Music, 256
F. Supp at 403 & n.9.
Taamneh did not “change[] [these]
fundamental principles of copyright liability without
saying so in a case that was not about copyrights.”
UMG Recordings Inc. v. Grande Commc’ns Networks,
LLC, 118 F.4th 697, 714 (5th Cir. 1963). Taamneh
addressed the meaning of “aid[ing] and abet[ting]” as
26
it appears in the Justice Against Sponsors of
Terrorism Act (“JASTA”), 18 U.S.C. § 2333(a).
Taamneh, 598 U.S. at 493-94. Taamneh’s finding
that Twitter’s provision of a social media platform
did not constitute aiding and abetting of terrorism
should not be overlaid on the well-established,
wholly separate, body of law governing secondary
liability for copyright infringement. Because JASTA
specifically adopted the phrasing and common law
principle of aiding and abetting when it established
liability for assisting the criminal act of terrorism,
the Court looked to aiding and abetting
jurisprudence to construe JASTA’s aid-and-abet
standard. In enacting the Copyright Act of 1976,
Congress made no mention of aiding and abetting,
and instead incorporated and affirmed the thenexisting standards for secondary liability under
copyright law, see infra § III(C).
In any event, upholding the doctrine of
contributory copyright infringement by material
contribution in this case is consistent with Taamneh.
There was no allegation in Taamneh that the
terrorist organization had used Twitter’s services to
carry out its terrorist attack (which occurred offplatform) and thus no “concrete nexus between
[Twitter’s] services and the . . . attack.” Id. at 501.
Nor was there any allegation that Twitter knew of
the planned terrorist attack at issue. That is in
contrast to this case, and the many ways publishers
rely on the application of contributory liability where
27
there is knowledge of specific infringing activity
being conducted through continued provision of
services, and where a “direct nexus,” Id. at 506,
therefore exists between the service provider’s
activities and the underlying tort.
Taamneh does not require weakening the
standards for imposing liability for contributory
infringement by material contribution where an
actor has been notified of specific instances of
infringement and continues to allow and facilitate
that infringement. Such liability tracks the “twin
requirements” of knowledge and substantial
assistance that Taamneh identifies as supporting
aiding and abetting liability. Id. at 491. Under this
framework, where online service providers have been
notified of infringement, continuing to provide the
“support services” necessary to complete the
infringement is sufficient to meet the assistance
threshold. Fonovisa, 76 F.3d at 264. Smith & Wesson
Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S.
280 (2025), is even less relevant here, as the Court
found there was a failure to link the gun
manufacturer’s conduct to specific rogue dealers (i.e.,
lack of knowledge) and the manufacturer was not
engaged in a direct and ongoing service in aid of the
crime (i.e., lack of material contribution).
28
C. Statutory copyright law confirms the
viability of contributory infringement
liability by material contribution
Both the Copyright Act of 1976 and the Digital
Millenium Copyright Act reflect Congress’s
recognition of the material contribution theory of
contributory infringement and its intent to impose
liability for that tort.
When Congress passed the Copyright Act of
1976, it included language affirming that
contributory infringers were liable for copyright
infringement. Congress defined “[t]he exclusive
rights accorded to a copyright owner” to include both
“do[ing]” and “authoriz[ing]” such acts, 17 U.S.C. §
106, specifically “to avoid any questions as to the
liability of contributory infringers,” H.R. Rep. No. 941476, at 61 (1976). By that time, Gershwin already
had definitively articulated the “material
contribution” basis of contributory infringement, and
Congress is “generally presume[d]” to be
“knowledgeable about existing law pertinent to the
legislation it enacts,” Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 176 (1988). Gershwin’s issuance
in 1971, five years before passage of the Copyright
Act, compels the conclusion that Congress’s
codification of contributory infringement liability in
federal law extends to the material contribution
theory of that doctrine as developed by case law.
29
Two decades later, Congress again recognized
liability for contributory infringement by material
contribution, when it enacted the safe harbor
provisions of the DMCA. 17 U.S.C. § 512. Under
these provisions, internet service providers may
avoid liability for copyright infringement conducted
by their end-users so long as they address and help
halt that misconduct once they have actual or
constructive knowledge of the infringement. Id. §
512(c). To avail themselves of a safe harbor, online
service providers must “expeditiously . . . remove . . .
material that is claimed to be infringing” or disable
access to it, upon receiving notice of the infringement
or otherwise becoming aware of the infringement or
circumstances making the infringement apparent.
Id. § 512(c)(1)(C).
To encourage online service providers to help
combat underlying direct infringement, Congress
enacted the safe harbor provisions to protect
“innocent” service providers from “liability for
‘passive,’ ‘automatic’ actions” on a provider’s system
that may be “initiated by another without the [prior]
knowledge of the service provider,” ALS Scan, Inc. v.
RemarQ Communities, Inc., 239 F.3d 619, 625 (4th
Cir. 2001) (quoting H.R. Rep. No. 105-796, at 72
(1998), while helping mitigate the “threat of
rampant, lower-barrier infringement by the users of
good-faith OSPs.” U.S. COPYRIGHT OFF., SECTION 512
OF TITLE 17, A REPORT OF THE REGISTER OF
COPYRIGHTS 21 (2020) (“Office Report”),
30
https://www.copyright.gov/policy/section512/section512-full-report.pdf. In doing so, the bill balanced the
interests of platforms and the public in creating a
stable environment for the development of a robust
digital ecosystem. See infra § IV. By “clarif[ying] the
liability faced by service providers who transmit
potentially infringing material over their networks,”
the bill “ensure[d] that the efficiency of the Internet
will continue to improve and that the variety and
quality of services on the Internet will expand.” S.
Rep. No. 105-190, at 2 (1998).
In short, the DMCA safe harbors apply most
readily to online service providers operating in good
faith who, but for the safe harbor, could face liability
for contributory infringement by material
contribution for failing to remove infringing content
or access to such content. The safe harbors are not
directed at the bad-faith providers described by
Petitioner who induce, specifically encourage, or
focus on infringement. Cf. Cox Br. at 32. This
emphasis further demonstrates Congress’s
understanding of the existence, scope, and reach of
contributory infringement by material contribution.
The balance Congress struck in the DMCA
between protecting good-faith OSPs and
safeguarding intellectual property in the digital age
depends on preserving a robust contributory
infringement doctrine that includes material
contribution so that online service providers are
31
incentivized to cooperate in removing infringing
material. See infra § IV. This framework would be
undermined if the longstanding doctrine of
contributory infringement by material contribution—
which Congress understood and relied on when
enacting the DMCA—were upset or substantially
altered.
IV.
Dismantling Contributory Copyright
Infringement by Material Contribution
Would Gut Online Service Providers’
Incentives to Remove Infringement
In enacting the safe harbor provisions of the
DMCA, Congress expressly intended to strike a
balance between creating a stable and predictable
environment for online service providers and
protecting rightsholders from online infringement.
Under this balance, “in return for the obligation to
take down infringing works promptly on receipt of
notice of infringement from the owner,” OSPs are
“relieved of liability for user-posted infringements of
which they were unaware, as well as of the
obligation to scour matter posted on their services to
ensure against copyright infringement.” Capitol
Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 89-90 (2d Cir.
2016). Thus, the Act provides “strong incentives for
service providers . . . to cooperate to detect and deal
with copyright infringements that take place in the
digital networked environment.” H.R. Rep. No. 105551, pt. 2 at 49-50 (1998); H.R. Rep. No. 105-796, at
32
72 (1998), because “[e]ven if a provider satisfies the
common-law elements of [i.e., is otherwise liable for]
contributory infringement,” it will be “exempt” from
liability if it meets the safe harbor eligibility
requirements, S. Rep. No. 105-190, at 40 (1998); H.R.
Rep. No. 105-551, pt. 2, at 50 (1998).
This careful balance only works if online
service providers need the safe harbors to avoid
liability for contributory copyright infringement.
Avoiding that liability is the “strong incentive” for
OSPs to “cooperate” with rightsholders to police
infringement on their platforms. If a central element
of contributory liability exposure is eroded, the
balance will break down and the incentive for online
service providers to cooperate in removing infringing
content will correspondingly diminish, while
rightsholders would be stripped of an essential tool
provided by Congress to combat infringement.
The results of this breakdown would be
intensely and widely felt by publishers because it
would impede their ability to enforce their rights
across numerous online platforms, including web
hosts, search engines, user-content platforms, and
others, not just internet service providers. Most of
these online service providers do not provide basic
infrastructure—i.e., the “pipes”—of the internet.
Rather, the online service providers covered by the
DMCA offer a spectrum of services, including
curated services tailored to specific forms of content
33
and commerce, such as digital marketplaces (e.g.,
eBay) or video-sharing and social media platforms
(e.g., YouTube, Facebook). See Blake E. Reid,
Uncommon Carriage, 76 STAN L. REV. 89, 138 (2024)
(describing how “application-layer internet
platforms” “vary widely in terms of their
functionality and relationship to discrimination”
among users and content).
In this way, many online service providers are
analogous to the operators of physical venues that
have been held liable for contributory infringement
deriving from the conduct of their attendees. See,
e.g., Fonovisa, 76 F.3d at 264 (operator contributorily
liable where it facilitated interactions among
customers and sellers of infringing goods at a
particular location and events). These online service
providers should continue to be incentivized to
reduce infringements on their sites to avoid liability
for materially contributing to copyright
infringement.
Petitioner and its amici argue that preserving
the well-settled principles of contributory
infringement by material contribution and applying
them in this case could result in internet service
disruption. Cox. Br. 45; see also U.S. Br. at 29-30.
But the doctrine of contributory infringement by
material contribution has been also applied to, and
animates the DMCA safe harbors for, online service
providers of all types including web hosts, search
34
engines, user-content platforms, and others that
publishers regularly interact and engage with—not
just ISPs. Maintaining that status quo, in which
online service providers of many types (not just ISPs)
may be liable for contributory infringement by
material contribution, is entirely workable and,
indeed, as applied to non-ISP online service
providers, will not result in anyone losing internet
service because those providers remove infringing
material or even terminate repeat infringers.
Forcing publishers to sue individual infringers
rather than this wide range of online intermediaries
that knowingly exploit their infringements would
upset the balance Congress struck in the DMCA,
which is already under pressure. As the Copyright
Office has observed, the system is already “askew,”
having “shifted [o]ver the decades” in ways that have
placed “an increasing burden on rightsholders to
adequately monitor and enforce their rights online,
while providing enhanced protections for OSPs in
circumstances beyond those originally anticipated by
Congress.” Office Report, at 84, 197.
A ruling that extinguishes or diminishes
contributory liability by material contribution would
tip the balance even further and encourage
infringement by shifting copyright enforcement
obligations almost solely to publishers. It would
hamstring publishers’ ability to combat rampant
online infringement through actions or takedown
35
notices sent to internet service providers, thus
limiting their remedy to actions for direct
infringement brought against hard-to-identify, hardto-find, and hard-to-sue individual direct infringers.
That would further undermine the balance of
responsibilities in the digital age and create
significant hardship for beleaguered publishing
industries, including local news sources already
under pressure. 10 Publishers who create and
distribute their own content, in contrast to platforms
that commercialize content created by others,
already shoulder the overhead associated with
editorial, copyright clearance, and fact-checking
processes that contribute to the production of quality
writing. Meanwhile, they compete with social media
platforms and other online service providers
monetizing third-party content, free of the typical
burdens that come with content production and
distribution, due to the “sweeping immunity”
conferred by Section 230 of the Communications and
Decency Act. Malwarebytes, Inc. v. Enigma Software
Grp. USA, LLC, 141 S. Ct. 13, 18 (2020) (statement
of Thomas, J., respecting denial of certiorari); see
also Reviving Competition, Part 2: Saving the Free
and Diverse Press Before the Subcomm. on Antitrust,
Commercial, and Administrative Law of the H.
10 See, e.g., Zach Metzger, The State of Local News: The 2024
Report, NORTHWESTERN UNIV.,
https://localnewsinitiative.northwestern.edu/projects/state-oflocal-news/2024/report/.
36
Comm. on the Judiciary, 117th Cong. 112 (2021)
(statement of Del. Ken Buck, Member, H. Comm. on
the Judiciary) (“Big Tech doesn’t have a bunch of
reporters out there covering news stories or opinion
writers writing the news stories. All they do is they
take someone else’s product, and they use that
product for more and more profit for them and less
and less profit—or revenue for the other side[.]”).
A ruling that shifts copyright enforcement
obligations almost solely to publishers would amount
to a policy decision that would seriously affect digital
publishers already operating in an asymmetrical
environment. Such a result could accelerate existing
challenges to publisher business models, reducing
the amount of new, original, quality content made
available online to the public without cost. See
Harper & Row Publishers, 417 U.S. at 558 (“In our
haste to disseminate news, it should not be forgotten
that the Framers intended copyright itself to be the
engine of free expression.”). In enacting the DMCA,
Congress engaged in careful analysis and adopted a
balanced approach towards incentives in the digital
environment that this Court should decline to upend.
37
CONCLUSION
For the foregoing reasons, Amici respectfully
request that the Court affirm that material
contribution to known infringement can give rise to
secondary copyright liability.
Respectfully submitted,
CYNTHIA S. ARATO
Counsel of Record
WILLIAM I. TAYLOR
SHAPIRO ARATO BACH LLP
1140 Avenue of the Americas
17th Floor
New York, New York 10036
(212) 257-4882
carato@shapiroarato.com
Counsel for Amici 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.