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

Supreme Court briefSep 19, 2024

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No. 24-181

IN THE

Supreme Court of the United States

SONY MUSIC ENTERTAINMENT, et al.,

Petitioners,

COX COMMUNICATIONS, INC., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF A PPEALS FOR THE FOURTH CIRCUIT

BRIEF OF COPYRIGHT ALLIANCE

AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

NANCY E. WOLFF

Counsel of Record

ELIZABETH SAFRAN

COWAN DEBAETS A BRAHAMS &

SHEPPARD LLP

60 Broad Street, 30th Floor

New York, NY 10004

(212) 974-7474

nwolff@cdas.com

KEVIN MADIGAN

1331 F Street, NW, Suite 950

Washington, DC 20004

September 19, 2024

332497

Counsel for Amicus Curiae

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF ARGUMENT……………………..……3

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

II.

COX SUBSTANTIALLY AND

DETRIMENTALLY IMPACTS

CREATIVE INDUSTRIES ............................... 6

Cox Exacerbates The Significant

Threats Creators Face In

Supporting Their Livelihoods

While Striving To Share And

Safeguard Their Works Online ............. 7

Cox Will Disincentivize

Creators From Sharing

Their Works Online,

Which In Turn Will

Chill Creation And

Harm The Economy ............................. 15

COX THREATENS THE CRUCIAL

BALANCES OF THE DMCA ......................... 20

Congress Crafted The Careful

Balances Of Section 512 Of

The DMCA With Secondary

Liability In Mind ................................. 21

Cox Will Destroy The Careful

Balancing Of Interests

Intended Under Section 512................ 23

Under The Current DMCA,

Creators Shoulder An Outsized

Burden In Protecting Their Works ..... 25

CONCLUSION .......................................................... 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

881 F.3d 293 (4th Cir. 2018)............................... 24

Fogerty v. Fantasy, Inc.,

510 U.S. 517 (1994)............................................. 18

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

464 U.S. 417 (1984)............................................... 7

Constitutional Provisions and Statutes

17 U.S.C. § 512 ..................................................... 4. 22

U.S. Const. art. I, § 8, cl. 8 ......................................... 7

Legislative Material

H.R. Rep. No. 105–551, pt. 2 (1998) ........ 8, 19, 21–22

S. Rep. 105-190 (1998) ....................................... 21–22

Other Sources

2022 Review of Notorious Markets for Counterfeiting

and Piracy, Office of the U.S. Trade Rep.,

https://ustr.gov/sites/default/files/202301/2022%20Notorious%20Markets%20List%

20(final).pdf ................................................... 11–12

Alex Hern, Fresh Concerns Raised Over Sources of

Training Material for AI Systems, Guardian

(Apr. 20, 2023), https://www.theguardian.com/

technology/2023/apr/20/fresh-concerns-trainingmaterial-ai-systems-facist-pirated-malicious .... 13

Alison Snyder, Machine Forgetting: How Difficult It

Is to Get AI to Forget, Axios (Jan. 12, 2024),

https://www.axios.com/2024/

01/12/ai-forget-unlearn-data-privacy ................. 13

Amy X. Wang, Musicians Get Only 12 Percent of the

Money the Music Industry Makes, Rolling Stone

(Aug. 7, 2018), https://www.rollingstone.com/

pro/news/music-artists-make-12-percent-frommusic-sales-706746 ....................................... 16–17

Amy X. Wang, The Median U.S. Musician Is Still

Making Under $25,000 a Year, Rolling Stone

(June 27, 2018), https://www.rollingstone.com/

pro/news/the-median-u-s-musician-is-stillmaking-under-25000-a-year-666833 .................... 9

Andrew A. Toole et al., Intellectual Property and the

U.S. Economy: Third Edition,

https://www.uspto.gov/sites/default/

files/documents/uspto-ip-us-economythird-edition.pdf .................................................. 17

Artificial Intelligence and Intellectual Property –

Part II: Copyright: Hearing Before the

Subcomm. on Intell. Prop. of the S. Comm.

on the Judiciary, 118th Cong. (2023)

(statement of Jeff Harleston) ....................... 14–15

Artificial Intelligence and Intellectual Property –

Part II: Copyright: Hearing Before the

Subcomm. on Intell. Prop. of the S. Comm.

on the Judiciary, 118th Cong. (2023)

(statement of Karla Ortiz) .................................. 14

Blake Morgan, Comment, Copyright Alliance

Member Survey (2024) ....................................... 26

Brandon Clement, Comment, Copyright Alliance

Member Survey (2024) ....................................... 26

Christopher S. Stewart, As Pirates Run Rampant,

TV Studios Dial Up, Wall St. J. (Mar. 3, 2013),

https://www.wsj.com/articles/SB100014241

27887324906004578292232028509990 ....... 10–11

U.S.C. § 512 After Two Decades: Hearing Before

the H. Comm. on the Judiciary, 116th Cong.

(2020) (statement of Morgan Kibby) ............ 15–16

Edd Gent, Public AI Training Datasets Are Rife

With Licensing Errors, IEEE Spectrum (Nov. 8,

2023), https://spectrum.ieee.org/data-ai ............ 13

Film & TV Piracy Surge During COVID-19

Lockdown, MUSO, https://www.muso.com/

magazine/film-tv-piracy-surge-duringcovid-19-lockdown#:~:text=New%20data%

20released%20from%20MUSO,lockdown%20

was%20enforced%20in%20March ................ 19–20

Ian Carstens, Outdated United States’ Online

Learn from the International Community,

24 San Diego Int’l L.J. 335 (2023) ...................... 12

Is the DMCA’s Notice-and-Takedown System

Working in the 21st Century?: Hearing Before the

Subcomm. on Intell. Prop. of the S. Comm. on the

Judiciary, 116th Cong. (2020) (statement of

Jeffrey Sedlik) ................................................. 9–10

Jeffrey Sedlik, Comment, Copyright Alliance

Member Survey (2024) ........................... 10, 25–26

Karen K. Ho, Economic Survey of Artists in New

York Shows 57 Percent Earn $25,000 or Less,

ARTnews (June 27, 2024),

https://www.artnews.com/art-news/news/

economic-survey-artists-new-york-state-57percent-earnings-25000-creatives-rebuild1234710735/ ...................................................... 8–9

Key Takeaways from the Authors Guild’s 2023

Author Income Survey, Authors Guild,

https://authorsguild.org/news/key-takeawaysfrom-2023-author-income-survey/ ........................ 9

Matt Bass, RIAA Mid-Year 2024 Recorded Music

Revenue Report, RIAA, https://www.riaa.com/wpcontent/uploads/2024/08/RIAA-Mid-Year-2024Revenue-Report.pdf ............................................ 16

Matthew Sag, Internet Safe Harbors and the

Transformation of Copyright Law,

93 Notre Dame L. Rev. 499 (2017) ..................... 24

vii

MUSO Study Shows Strong Correlation Between

Box Office and Unlicensed Audience Data,

MUSO, https://www.muso.com/

magazine/correlation-between-box-officeand-unlicensed-audience-data ........................... 28

Petition for Writ of Certiorari,

Cox Commc’ns, Inc. v. Sony Music Entm’t

(2024) (No. 24-171)................................................ 5

Petition for Writ of Certiorari,

Sony Music Entm’t v. Cox Commc’ns, Inc.

(2024) (No. 24-181)........................................ 26–27

Radio, Music, and Copyrights: 100 Years of Inequity

for Recording Artists: Hearing Before the

Subcomm. on Courts of the H. Comm. on the

Judiciary, 118th Cong. (2024)

(statement of Randy and Mary Travis).............. 16

Robert Stoner & Jéssica Dutra, Secretariat

Economists, Copyright Industries in the U.S.

Economy: The 2022 Report, https://www.iipa.org/

files/uploads/2022/12/IIPA-Report2022_Interactive_12-12-2022-1.pdf.............. 17–18

Roy Kafuman, Copyright and Licensing in the Time

of COVID-19, Copyright Clearance Center (Sept.

29, 2020), https://www.copyright.com/blog/

viii

Section 512 of the Digital Millennium Copyright Act:

Hearing Before the Subcomm. on Intell. Prop. of

the S. Comm. on the Judiciary, 116th Cong.

(2020) (oral statement of Don Henley) ............... 16

The Power, The Peril, and the Promise of the

Creative Economy: Hearing Before the

H. Comm. on the Judiciary, 117th Cong.

(2022) (statement of Carson Elrod) .................... 11

T.J. Stiles, Comment, Copyright Alliance

Member Survey (2024) ........................... 10, 25–26

Trina Mannino, Performing Arts Sector Faces

Change Four Years After Pandemic Start,

All Arts (Apr. 26, 2024),

https://www.allarts.org/2024/04/

new-york-city-performing-arts-pandemic ............ 9

U.S. Copyright Office, Section 512 of Title 17

(May 2020), https://www.copyright.gov/

policy/section512/section-512-full-report.pdf ..... 27

BRIEF OF COPYRIGHT ALLIANCE AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

The undersigned amicus curiae respectfully

submits this brief in support of the petition for a writ

of certiorari filed by Petitioners Sony Music

Entertainment, et al., to review the decision of the

United States Court of Appeals for the Fourth

Circuit. 1

INTEREST OF AMICUS CURIAE

The Copyright Alliance is a nonprofit, nonpartisan

501(c)(4) membership organization dedicated to

promoting and protecting the ability of creative

professionals to earn a living from their creativity. It

represents the copyright interests of over two million

individual creators across the entire spectrum of

creative industries—including authors, songwriters,

musical composers and recording artists, journalists,

documentarians, television and filmmakers, graphic

and visual artists, photographers and software

developers—and the small businesses that are

1 Pursuant to Rule 37.6, amicus curiae states that no counsel for

any party authored this brief in whole or in part, and no party

or counsel for any party made a monetary contribution intended

to fund the preparation or submission of this brief. Only amicus

curiae made such a monetary contribution. Some Copyright

Alliance members are, or are affiliates of, Petitioners in this

matter. Some may join other amicus briefs in support of

Petitioners. Counsel of record received timely notice of amicus

curiae’s intent to file this brief under Rule 37.2.

affected by the unauthorized use of their works. The

individual creators, creative union workers, and

small businesses in the creative industry, as well as

the organizations and corporations that support and

invest in them. The livelihoods of this diverse array of

creators and companies depend on the exclusive

rights guaranteed by copyright law.

The Copyright Alliance’s members rely heavily on

works, which in turn incentivizes the creation of new

works and promotes the progress of the arts. The

interest in the proper application of copyright law,

including with respect to the legal frameworks

balancing creators’ rights against service provider

immunities. The Copyright Alliance submits this

amicus curiae brief to help the Court understand why

it should grant certiorari, as this case carries

significant implications for creators and Internet

service providers (“ISPs”), like Respondents, who did

not meet the threshold statutory requirements for one

of the Digital Millennium Copyright Act (“DMCA”)

safe harbors and should not be allowed to get off scotfree when they knowingly facilitated infringement

and financially benefited from illegal activity. Amicus

curiae submits this brief in support of Petitioners’

request for certiorari seeking the reversal of the

Fourth Circuit’s decision, pursuant to Sup. Ct. R. 37.

SUMMARY OF ARGUMENT

In narrowing the scope of vicarious liability, the

Fourth Circuit has created a dangerous precedent

that will devastate millions of copyright owners

already struggling to protect the work they share with

the public. Far from merely mediating a dispute

between large music rightsholders and ISPs, the

Fourth Circuit’s decision, wrongly interpreting what

it means to profit under vicarious liability, imperils

the entire creative community. The artists, authors,

filmmakers, musicians, and countless other creators

who enrich our culture deserve better. This is a

community already struggling to recover from

pandemic-era shutdowns and the corresponding

surge in online infringement, not to mention the

proliferation of generative artificial intelligence

(“GAI”) activity that can exacerbate infringement at

an unprecedented scale. Congress, as well as the

majority of circuits that have correctly interpreted

vicarious liability for over a century, would support

creators and reduce infringement by maintaining

incentives for ISPs to do their part—which is often

merely the minimum—in combatting it. By contrast,

the Fourth Circuit has chosen to do the opposite by

rewarding bad actors. This cannot be. To allow the

Fourth Circuit’s incorrect decision to stand is to

upend the balance of our entire online ecosystem,

emboldening other ISPs to abandon their efforts to

comply with the DMCA. With this ruling, no ISP will

take the DMCA seriously, feel compelled to respond

to proper notices of infringement, or terminate a

repeat infringer—no matter how egregious their

behavior.

Crafted by Congress as a compromise between

the Internet while ensuring an effective means of

enforcing copyright law, Section 512 of the DMCA

plays a significant role in the copyright regime.

Section 512 exempts ISPs from monetary liability for

the infringements of their users through “safe

harbors,” provided they meet certain requirements,

including having and implementing a reasonable

policy surrounding the termination of repeat

infringers. 17 U.S.C. § 512(i)(1)(A). Although ISPs

can, and often do, readily meet these requirements,

Respondents Cox Communications, Inc. and CoxCom,

LLC (collectively, “Respondents”) chose not to. They

should have been held liable. Yet, notwithstanding

their numerous overt failings, the Fourth Circuit

granted them a free pass, departing from the

majority-held view of the vicarious liability doctrine

that ISPs profit from infringement when they profit

from the operation in which the infringement occurs.

Instead holding that ISPs must profit directly from

infringement on their platforms—which is nearly

impossible to prove—the Fourth Circuit so narrows

the definition of profit that it essentially renders

vicarious liability a nullity. Crucially, the lower court

upsets the balance Congress intended from the

DMCA. Without the sword of liability hanging over

their heads for turning a blind eye to infringers on

their platforms, ISPs will have no incentive to seek

the benefits the DMCA safe harbor was designed to

provide. Indeed, Respondents seek to undo any

measure of liability for their provision of Internet

service to known infringers. With their parallel

petition for a writ of certiorari regarding the Fourth

Circuit’s affirmation of their liability for willful

contributory infringement, Respondents make clear

their aim of chipping away at the doctrines that

ensure ISPs do their part in addressing infringement

occurring on their platforms, from secondary liability

to the DMCA. See generally Petition for Writ of

Certiorari, Cox Commc’ns, Inc. v. Sony Music Entm’t

(2024) (No. 24-171). Although the balance struck by

Congress when it enacted the DMCA has since tilted

considerably in favor of ISPs, ultimately, it remains

the best tool for creators to bring ISPs to task to

cooperate in combatting infringement. This

cooperation is exactly what Congress sought with the

DMCA, intending robust doctrines of secondary

liability to bring ISPs to the table. With this ruling,

however, the lower court eviscerates the DMCA and

encourages other ISPs to follow Cox’s lead and flout

its requirements, opening the flood gates to infringers

online.

ARGUMENT

COX SUBSTANTIALLY AND DETRIMENTALLY IMPACTS CREATIVE

INDUSTRIES.

Cox wrongly elevates the economic interests of

large ISP companies at the expense of creators

struggling to make ends meet in an increasingly

uphill battle to combat online piracy. By imposing a

strict causation requirement upon determinations of

profit within the standard for vicarious liability, Cox

undercuts the crucial balancing of rights online—as

set forth in DMCA Section 512—relegating copyright

law to an inconsequential afterthought.

Now more than ever, creators need the statutory

protections enacted by Congress to preserve their

exclusive rights, yet the Fourth Circuit would upend

these protections based on its misunderstanding of

vicarious liability. Alone among courts of appeals in

its view that an ISP need only be held accountable for

infringing activity if it directly profits from the

infringement rather than from maintaining the

operation in which the infringement occurs, the

Fourth Circuit has propounded a harmful standard.

Its practical effects could not come at a worse time.

Creators are facing a post-pandemic juncture

dominated by breakneck advancements in publicfacing GAI models that are, on the one hand, often

built upon the wide-scale infringement of creators’

works, and, on the other, workhorse systems enabling

users to commit further infringement to an

exponential degree. Narrowing the scope of vicarious

liability now not only represents a clear legal

departure but will enable ISPs to flout their

obligations to regulate infringement online, injuring

creators at a time when industries and livelihoods

alike hang in the balance.

Cox Exacerbates The Significant

Threats Creators Face In Supporting

Their Livelihoods While Striving To

Share And Safeguard Their Works

Online.

In narrowing the scope of vicarious liability, Cox

ultimately disregards the rights of copyright owners.

This is far from what the Founding Fathers and

Congress intended. The underlying purpose of

creators are incentivized to create works for the

ultimate promotion of “the progress of Science and

useful Arts . . . .” U.S. Const. art. I, § 8, cl. 8. “[T]he

limited grant is a means by which an important public

purpose may be achieved,” as “[i]t is intended to

motivate the creative activity of authors and

inventors by the provision of a special reward, and to

allow the public access to the products of their genius

after the limited period of exclusive control has

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

Inc., 464 U.S. 417, 429 (1984).

As technology has advanced and the Internet has

become a predominant means of publicly

disseminating copyrighted works, Congress has

striven to maintain balance between competing

interests online, to safeguard creators’ rights even

while accommodating technology. During its

consideration of the DMCA, Congress weighed, on the

one hand, a then-nascent Internet aiming to provide

greater legal access to copyrighted works and, on the

other, the preservation of copyright owners’ exclusive

rights. See H.R. Rep. No. 105–551, pt. 2 at 21 (1998).

By wrongly assessing what it means to profit

within the standard for vicarious liability, the Fourth

Circuit has, however, adopted a position that

threatens this balance. Its ruling elevates the

economic interests of large tech companies that

provide Internet access over copyright’s economic

incentives to stimulate creators to create works for

the benefit of the public. This position contravenes the

objectives of copyright and devalues a significant

component

our

economy

and

culture.

Fundamentally, it harms creators. Those both

renowned and unknown depend on copyright’s grant

of exclusive rights to monetize their creations. Yet,

individual artists and creators in particular face

declining incomes as they struggle to support their

livelihoods with their creative work. See Karen K. Ho,

Economic Survey of Artists in New York Shows 57

Percent Earn $25,000 or Less, ARTnews (June 27,

2024),

https://www.artnews.com/art-news/news/

economic-survey-artists-new-york-state-57-percentearnings-25000-creatives-rebuild-1234710735/; Key

Takeaways from the Authors Guild’s 2023 Author

Income

Survey,

Authors

Guild,

https://authorsguild.org/news/key-takeaways-from2023-author-income-survey/ (last updated Oct. 25,

2023) (“[H]alf of all full-time authors continue to earn

below minimum wage in many states . . . .”); Amy X.

Wang, The Median U.S. Musician Is Still Making

Under $25,000 a Year, Rolling Stone (June 27, 2018),

https://www.rollingstone.com/pro/news/the-medianu-s-musician-is-still-making-under-25000-a-year666833. The recent COVID-19 pandemic has only

compounded this struggle, as creative communities

attempt to bounce back from the loss of revenue

streams following years-long nationwide shutdowns

and the corresponding uptick in online infringement.

See, e.g., Trina Mannino, Performing Arts Sector

Faces Change Four Years After Pandemic Start, All

Arts (Apr. 26, 2024), https://www.allarts.org/

2024/04/new-york-city-performing-arts-pandemic/.

The Fourth Circuit decision will only compound these

struggles.

Members of the creative communities have spoken

out about the difficulties they face. For example,

photographer Jeffrey Sedlik testified before a Senate

subcommittee that he makes a living creating and

licensing photographs that appear in many media

formats. Is the DMCA’s Notice-and-Takedown System

Working in the 21st Century?: Hearing Before the

Subcomm. on Intell. Prop. of the S. Comm. on the

Judiciary, 116th Cong. 2 (2020) (statement of Jeffrey

Sedlik). Yet he spends his days and nights enforcing

his rights by reporting infringements, without which

his work would be valueless and he would not be able

to feed his family. Id. Responding to a recent

the struggle of “generat[ing] revenue by creating and

licensing new works” while being “forced to compete

with hundreds of thousands of unlicensed, unpaid,

infringing uses of my works on service providers’

platforms and websites.” Jeffrey Sedlik, Comment,

Alliance

Member

Survey

(2024)

[hereinafter CA Survey].

Pulitzer Prize-winning author, T.J. Stiles, echoed

these sentiments, acknowledging the myriad

“financial stresses of [a] creator’s life,” such that “even

small income streams matter,” as, in his case, for

example, “[t]he annual royalties from my first

biography . . . pay for my family’s dental insurance.”

Stiles, Id. The effects of piracy are also felt by small

business owners, who rely on the ability to monetize

creative works to sustain their businesses and pay

their employees. For example, Kathy Wolfe, the

owner of an independent film company, reported that

she lost over $3 million in revenue in one year from

excessive pirating of her top 15 film titles, and due to

these losses, had to cut her employees’ pay and

discontinue her own salary. See Christopher S.

Stewart, As Pirates Run Rampant, TV Studios Dial

Up, Wall St. J. (Mar. 3, 2013), https://www.wsj.com/

articles/SB10001424127887324906004578292232028

509990. The piracy plaguing creators simply trying to

earn a living will only be exacerbated by Cox.

In addition to grappling with the legacy of piracy

incident to the advent of the Internet, creators today

face a unique juncture that is magnifying

infringement online. For one, the recent pandemic

and uptick in Internet use has led to a surge in online

piracy. Discussing the pandemic’s particular effects,

actor and director Carson Elrod testified before a

House of Representatives subcommittee that like the

many millions of arts workers throughout the

country, he “cobble[s] together [his] income from a

combination of disparate and wildly different

employers” and that, along with this community, in

March of 2020 “[his] world was turned completely

upside down.” The Power, The Peril, and the Promise

of the Creative Economy: Hearing Before the H.

Comm. on the Judiciary, 117th Cong. 1–2 (2022)

(statement of Carson Elrod). During the pandemic, he

faced “total unemployment” and watched as “longtime institutions closed permanently,” from talent

agencies to small business comedy venues. Id. at 3, 8.

To add insult to injury, creators like Elrod have had

to contend with a rising demand for pirated content,

as the world increasingly shifted online. A recent

report by the Office of the U.S. Trade Representative,

emphasized the “unprecedented spike in online

piracy” occasioned by the shuttering of live creative

arts destinations. 2022 Review of Notorious Markets

for Counterfeiting and Piracy, Office of the U.S. Trade

Rep. at 7, https://ustr.gov/sites/default/files/202301/2022%20Notorious%20Markets%20List%20(final)

.pdf [hereinafter U.S. Trade Report]. Formerly

shuttered piracy apps, such as “Popcorn Time”

reemerged,” leading, for example, to a 5600% rise in

illegal streaming of the film Contagion and “9.2

million illegal streams, of which more than 1.1 million

were in the U.S.” of The Conjuring: The Devil Made

Me Do It. Ian Carstens, Outdated United States’

Online Copyright Infringement Practices: What We

Can Learn from the International Community, 24 San

Diego Int’l L.J. 335, 367–68 (2023). This surge did not

end as social distancing concluded, however. Rather,

post-pandemic “the global demand for digital media

and entertainment content is increasing,” and so is

infringement. U.S. Trade Report at 7.

Since publication of this report, online

infringement has only grown worse, occasioned by the

advent of GAI, a rapidly proliferating technology built

upon mass ingestion of scraped online content. The

financial stress this causes creators is manifest. Many

GAI systems are trained, by design, on billions of

works ingested without authorization, scraped

indiscriminately from the Internet where they are

made available illegally. Without a robust vicarious

liability doctrine that motivates ISPs to comply with

the requirements for Section 512 safe harbor

protection and combat infringement, rightsholders

will have no recourse to remove online pirated

material, such that GAI models will invariably

continue to train on pirated content. See Alex Hern,

Fresh Concerns Raised Over Sources of Training

Material for AI Systems, Guardian (Apr. 20, 2023),

https://www.theguardian.com/technology/2023/apr/2

0/fresh-concerns-training-material-ai-systems-facistpirated-malicious. This practice will harm creators.

As licensing models emerge for copyrighted works as

training material, the availability of pirated copies

undercuts what is poised to become another revenue

source for creators. Moreover, the inclusion of pirated

content drastically reduces the possibility for “clean”

datasets, particularly where, in practice, such sets are

often “packaged and repacked [] many times” for use

in training numerous GAI models. Edd Gent, Public

AI Training Datasets Are Rife With Licensing Errors,

IEEE

Spectrum

(Nov.

2023),

https://spectrum.ieee.org/data-ai.

And,

technologists have cautioned, “unlearning isn’t as

straightforward as learning,” but, rather, is like

“trying to remove specific ingredients from a baked

cake, [i.e.] nearly impossible.” Alison Snyder, Machine

Forgetting: How Difficult It Is to Get AI to Forget,

Axios (Jan. 12, 2024), https://www.axios.com/2024/

01/12/ai-forget-unlearn-data-privacy. A GAI model,

once trained on pirated data, will typically retain it

for its lifespan, notwithstanding subsequent training

and evolution. In this way, pirated content will be

baked into the foundation of the majority of GAI

models, undercutting creators’ ability to control and

monetize their works.

The creative community has begun to voice, en

masse, their concerns around indiscriminate scraping

of content—pirated and otherwise—which forms the

current modus operandi for some GAI model training,

as well as the difficulties and financial threats this

practice poses. Karla Ortiz, a San-Francisco-based

artist,

recently

testified

before

Senate

subcommittee that the GAI industry is expected to

grow to “nearly $2 trillion USD by 2030” all “without

any compensation” for the creators whose works it has

unauthorizedly consumed, an insult underscored by

the fact that this technology is “completely reliant

upon” “a huge collection of images, media, and text

descriptions scraped from the web . . . .” Artificial

Intelligence and Intellectual Property – Part II:

Prop. of the S. Comm. on the Judiciary, 118th Cong.

1, 6 (2023) (statement of Karla Ortiz). Jeff Harleston,

General Counsel and Executive Vice President of

Business and Legal Affairs at Universal Music Group

echoed these concerns, noting that “generative AI

companies are often obtaining [creative] content from

sources that explicitly prohibit downloading and use

of that content . . . . [with] examples of AI-generated

music, [for instance,] being used to generate

fraudulent plays on streaming services, siphoning

income from human creators.” Artificial Intelligence

and Intellectual Property – Part II: Copyright:

Hearing Before the Subcomm. on Intell. Prop. of the S.

Comm. on the Judiciary, 118th Cong. 2 (2023)

(statement of Jeff Harleston). This mass

unauthorized ingestion of scraped online content

deprives creators of just compensation for use of their

works. The indiscriminate inclusion of pirated

material within such content exacerbates this issue,

as GAI engineers gain access to works creators may

not have intended for use as data or wished to

monetize and license. Allowing Cox to water down

vicarious liability will only magnify matters by

making it harder for creators to ensure that pirated

content is not used to train GAI models.

Cox Will Disincentivize Creators From

Sharing Their Works Online, Which In

Turn Will Chill Creation And Harm

The Economy.

Though piracy—which now encompasses the

explosion in GAI data scraping—presents a grave

threat, Internet platforms remain crucial for creators

to monetize their work. For instance, singersongwriter Morgan Kibby testified before a House of

Representatives committee about her reliance on

platforms to generate income, especially during the

pandemic when she was unable to tour in person.

§ 512 After Two Decades: Hearing Before the H.

Comm. on the Judiciary, 116th Cong. 4–5 (2020)

(statement of Morgan Kibby). She testified that every

dollar counts because something as small as $100 will

keep the lights on in her studio. Id. Don Henley,

founding member of the Eagles, echoed her

sentiments, noting that, given how COVID-19

recently decimated the industry, a predominant

source of income for musicians is from licensing

digital music services. Section 512 of the Digital

Millennium Copyright Act: Hearing Before the

Subcomm. on Intell. Prop. of the S. Comm. on the

Judiciary, 116th Cong. 1–2 (2020) (oral statement of

Don Henley). Musician Randy Travis has also

stressed the predominance of “streaming, social

media, and downloading,” that “ha[ve] all but

replaced physical record and CD sales . . . .” Radio,

Music, and Copyrights: 100 Years of Inequity for

Recording Artists: Hearing Before the Subcomm. On

Courts of the H. Comm. on the Judiciary, 118th Cong.

1–2 (2024) (statement of Randy and Mary Travis).

Because every dollar counts, enforcement against

unlicensed uses is crucial. See Matt Bass, RIAA MidYear 2024 Recorded Music Revenue Report, RIAA,

https://www.riaa.com/wp-content/uploads/2024/08/

RIAA-Mid-Year-2024-Revenue-Report.pdf

(last

visited Sept. 19, 2024); Amy X. Wang, Musicians Get

Only 12 Percent of the Money the Music Industry

Makes,

Rolling

Stone

(Aug.

2018),

https://www.rollingstone.com/pro/news/music-artistsmake-12-percent-from-music-sales-706746. Allowing

Cox to narrow vicarious liability to the point of

inutility will impede creators from making a living

from their works, dissuading participation in their

fields and halting their creation of the works that

enrich our culture.

It is only fair to ensure the creative community be

able to monetize its works when, collectively, this

community contributes trillions to the U.S. gross

domestic product (“GDP”) every year. See Robert

Stoner & Jéssica Dutra, Secretariat Economists,

Report at 7–8, https://www.iipa.org/files/uploads/

2022/12/IIPA-Report-2022_Interactive_12-12-20221.pdf (reporting that copyright industries, which

account for approximately 16.1 million workers,

added more than $1.8 trillion to the economy from

2018 to 2021); see also Andrew A. Toole et al.,

Intellectual Property and the U.S. Economy: Third

Edition at 3, https://www.uspto.gov/sites/default/files/

documents/uspto-ip-us-economy-third-edition.pdf

(estimating that IP-intensive industries accounted for

$7.8 trillion in value added in 2019). According to an

annual report prepared for the International

Intellectual Property Alliance in 2022, the value

added by copyright industries to the U.S. economy

increased steadily from 2018 to 2021, and, by 2021,

accounted for 7.76 percent of the U.S. GDP. Stoner &

Dutra, supra, at 8. Depriving copyright owners of a

means to enforce their rights would create a stark

contrast whereby their contributions to copyright

industries help keep the economy afloat, yet they

cannot afford a basic living.

The Cox decision would do more than affect just

rightsholders, however; it would also harm the public,

and ultimately the economy, by chilling the creation

of new works. In addition to economic gains, copyright

serves the fundamental purpose of stimulating

creation to benefit the country’s shared wealth of

knowledge and culture. See Fogerty v. Fantasy, Inc.,

510 U.S. 517, 527 (1994) (“[C]opyright law ultimately

serves the purpose of enriching the general public

through access to creative works . . . .”). For creators,

who sustain their pursuits from the monetary returns

that copyright enables, the threat of extensive

infringement without recourse looms large. Many

creators lack the resources to litigate, and accordingly

they rely upon the DMCA to curb infringement.

Without the appropriate balance between the DMCA

and secondary liability to incentivize ISPs to

implement reasonable policies addressing repeat

infringers, creators will lose much-needed revenue to

infringement and ultimately be forced to abandon

their creative pursuits to support themselves. This

harm will be borne by the public, which will be

deprived of the music, art, writing, and performance

that is possible when creators and artists are able to

monetize their rights and financially support their

work. See H.R. Rep. 105-551, pt. 2 at 35 (“Throughout

our history, the ability of individual members of the

public to access and to use copyrighted materials has

been a vital factor in the advancement of America’s

economic dynamism, social development, and

educational achievement.”).

Faced with this drastic landscape, where a legacy

of digital piracy is now compounded by the advent of

GAI and the pandemic’s after-effects, creators need

online guardrails around the misuse of their works

more than ever before. GAI, for instance, continues to

outpace the law, as Congressional and federal

agencies continue considering legal reforms, with

caselaw still largely prospective or merely in early

pleadings. Meanwhile, a post-pandemic world

conducting more and more of itself online has led to

an ongoing piracy boom with which creators continue

to grapple. See Roy Kafuman, Copyright and

Licensing in the Time of COVID-19, Copyright

Clearance

Center

(Sept.

29,

2020),

https://www.copyright.com/blog/copyright-andlicensing-in-the-time-of-covid-19/; Film & TV Piracy

Surge During COVID-19 Lockdown, MUSO,

https://www.muso.com/magazine/film-tv-piracysurge-during-covid-19-lockdown#:~:text=New%20

data%20released%20from%20MUSO,lockdown%20w

as%20enforced%20in%20March (last visited Sept. 19,

2024). Through it all, creators’ primary recourse has

remained the DMCA. Fostering balance between the

interests of ISPs, users, and rightsholders, it is still

the paramount, and sometimes the only, piece of

legislation speaking to the novel issues facing

creators today. The Fourth Circuit’s attempt, then, to

redefine vicarious liability contravenes the aims of

the DMCA, sabotaging the incentives for ISPs to

comply with its safe harbor thresholds. In turn,

swathes of infringers will be given carte blanche to

remain online, infringing, and subverting creators’

livelihoods and creative output.

II.

COX THREATENS THE CRUCIAL

BALANCES OF THE DMCA.

The DMCA’s crucial balancing of competing online

interests would be thoroughly subverted in favor of

ISPs by allowing the Fourth Circuit’s incorrect take

on vicarious liability to stand. Diminishing creators’

ability to effectively coordinate with ISPs regarding

infringement was not Congress’s intent in

establishing the DMCA. Nor was it for a single court

to rewrite the rules of secondary liability and upend

the legislated incentives for safe harbor qualification,

even though that is Respondent’s bent, as it pushes

this Court to also reconsider the mandates of

contributory liability. However, narrowing secondary

liability will have the immediate effect of

disincentivizing

ISPs

from

adopting

and

implementing repeat infringer policies as well as the

other requirements for safe harbor. In the version of

the Internet presaged by Cox, ISPs will no longer need

safe harbor at all, because, in many instances, they

will no longer be held monetarily and secondarily

liable for the infringement on their platforms. By

upsetting vicarious liability, the Fourth Circuit will

effectively eviscerate the purpose and effectiveness of

the DMCA.

Congress

Crafted

The

Careful

Balances Of Section 512 Of The DMCA

With Secondary Liability In Mind.

DMCA Section 512 integrally balances the

interests of Internet platforms, users, and

rightsholders. Enacted in 1998, it serves as a

compromise between rightsholders and Internet

platforms to encourage the growth of the Internet

while also ensuring that rightsholders may effectively

protect their valuable intellectual property online.

See H.R. Rep. No. 105-551, pt. 2 at 21 (“[T]he

Committee believes it has appropriately balanced the

interests of content owners, on-line and other service

providers, and information users in a way that will

foster the continued development of electronic

commerce and the growth of the Internet.”). Congress

crafted Section 512, which provides monetary

limitations on liability for ISPs, to “preserve[] 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. 105-190, at 20

(1998).

To qualify for any of the four categories of services

subject to safe harbor protection, in addition to the

requirements of a particular safe harbor, ISPs must

first meet the threshold statutory requirements,

which include, most notably, adopting and reasonably

implementing a repeat infringer policy. See 17 U.S.C.

§ 512(i).

The functionality of this process depends,

however, upon Section 512’s coexistence with longheld principles of secondary liability, which Cox now

seeks to jettison. In crafting Section 512, Congress

was tasked with deciding which entity—creators or

ISPs—to obligate to monitor the Internet for

infringement. Seeking to confer room for a thenyoung Internet to grow without excessive affirmative

legal obligation, Congress settled on creators.

However, the responsibility to police infringements

constituted a clear burden, particularly considering

the enormity of the Internet and the limited

wherewithal of creators. The saving grace behind

burdening creators in this way was, then, Congress’s

faith in the continued application of common law

rules of secondary liability. H.R. Rep. No. 105-551, pt.

2 at 3. Although not responsible for actively policing

their own platforms, ISPs would still be accountable

for infringement uncovered there pursuant to the

longstanding traditions of secondary liability,

including vicarious liability. To avoid monetary

liability, they could simply choose to comply with the

DMCA, seeking safe harbor. Secondary liability

would be the carrot to incentivize safe harbor

compliance. That incentive will be gutted, however, if

Cox stands.

Cox

Will

Destroy

The

Careful

Balancing Of Interests Intended Under

Section 512.

By narrowing the profit requirements within

vicarious liability, the Fourth Circuit’s decision ties

the hands of one of the few secondary liability

doctrines creators may invoke when facing

infringement online, culminating in a significant

threat to the balance of interests Congress intended

under Section 512.

If Cox stands, ISPs will no longer be incentivized

to seek safe harbor under the DMCA and comply with

its basic requirements to curb infringement on their

platforms. Without the sword of vicarious liability (or

at the very least, one swapped from steel to stuntprop), ISPs will have no need for a shield. The same

outcome will inhere should the Court upset the

doctrine of contributory infringement. ISPs will be

well aware that any author undertaking the

significant costs of litigation will be going into battle

with diminished doctrines of liability unlikely to sway

any factfinder. They will therefore be emboldened to

shirk the duties of their repeat infringer policies or

abandon their implementation outright, as Cox did.

Cf. Matthew Sag, Internet Safe Harbors and the

Transformation of Copyright Law, 93 Notre Dame L.

Rev. 499, 513–14 (2017) (discussing how the DMCA

requirements are “optional, in the sense that

platforms could ignore the safe harbors and simply

accept the risk of copyright infringement claims in

relation to user content, but almost none elect to do

so” because the safe harbor conditions have become a

“de facto standard”). ISPs that do not wish to

terminate users, which may affect their bottom line,

could simply adopt Cox’s approach as a road map,

rather than complying with the DMCA’s safe harbor

provisions. Cox was an outlier for flouting the

DMCA’s mandates and still expecting safe harbor, 2

but by ratifying its approach, the Fourth Circuit is

paving the way for other ISPs to follow course and

usher in a wave of widespread, sanctioned online

piracy, at creators’ expense.

2 To be clear, Cox did not assert a DMCA defense, and therefore

the outcome did not turn on Cox’s eligibility—or lack thereof,

see BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d

293, 301–05 (4th Cir. 2018)—for safe harbor. That said, the

DMCA still loomed large, and Cox’s self-inflicted failure to

qualify for safe harbor was primarily why it found itself in

court. Had Cox attempted to qualify for safe harbor, by merely

adopting and implementing a reasonable policy, it could have

shielded itself from infringement claims. Instead, it

propounded a litigation position that would render the DMCA

itself a nullity and succeeded in convincing the Fourth Circuit

to adopt an erroneously narrow view of vicarious liability.

Under The Current DMCA, Creators

Shoulder An Outsized Burden In

Protecting Their Works.

In a sense, the lower court’s incorrect ruling is just

one more affront for the creative industries, which,

long plagued by online infringement, have been

fighting it with a DMCA that many now consider

flawed. As discussed, from the outset, creators were

tasked under the DMCA with policing infringement

online. With this apportioning of responsibilities,

Congress struck a balance, but one skewed heavily in

favor of ISPs, by design, to protect a developing

Internet. In the decades following the DMCA’s

enactment, however, ISPs have come to dominate the

economy. Individual creators, trailing behind ISPs

given a decades-old head start, have been left

struggling to protect their rights.

This disequilibrium has caused outsized damage,

particularly on individual creators. As T.J. Stiles

noted in the CA Survey, “[b]ecause of copyright, the

creative economy is one of the last areas in which the

individual is a key player,” but that fact makes

“authors and other creators [] uniquely vulnerable” to

piracy and the burden of tracking it. Stiles, Comment,

CA Survey. Echoed Jeffrey Sedlik, “[e]nforcing rights

under the DMCA is an impossible task,” particularly

for

visual

artists

who

“[m]ost[ly]

. . . operate as micro-businesses, often with no

employees. . . . It is an untenable situation” that

leaves “no time [] to create new works.” Sedlik, Id.

Musician and producer Blake Morgan concurred that

“[t]he time it would take [to police for infringement]

alone would mean I’d never be able to write another

song or make another record.” Morgan, Id. Stiles

further underscored the “impossible” task an

“individual author [shoulders] to track every pirate

organization and issue take-down notices,” noting

that even when an author does, “often nothing

happens.” Stiles, Id. This is because, per Emmy

Award-winning cinematographer Brandon Clement,

the DMCA as currently enacted “allow[s] social media

companies to leave loopholes for repeat infringers”

and is missing processes for speedier handling of

takedown requests, particularly as “almost all views

and monetization of content happens in the first 48

hours [of infringing content being uploaded].”

Clement, Id.

Clearly, notwithstanding the burden on creators

to put down their work to police infringements of their

work, the reward for their efforts is often radio

silence, delay, or similar obfuscation. Cox itself

demonstrated textbook examples of how an ISP may

frustrate an author’s good faith efforts to comply with

the DMCA and initiate what is supposed to be a

coordinated response to infringement. For instance,

although Cox had a policy to receive and process

infringement notices, as detailed in Petitioner’s brief,

Cox failed in many respects, capping the number of

notices it would accept from particular copyright

owners or the daily suspensions it would implement.

See Petition for Writ of Certiorari, at 9a, Sony Music

Entm’t v. Cox Commc’ns, Inc. (2024) (No. 24-181).

The U.S. Copyright Office concurs that something

is amiss. In its recent comprehensive Section 512

report, the Office recognized that the balance struck

by Congress in enacting the DMCA has since tilted

considerably in favor of ISPs. See U.S. Copyright

Office, Section 512 of Title 17 at 84 (May 2020),

https://www.copyright.gov/policy/section512/section512-full-report.pdf (“Over the decades, the shift in the

balance of the benefits and obligations for copyright

owners and OSPs under section 512 has resulted in

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.”), 197 (“The Copyright Office concludes

that the balance Congress intended when it

established the section 512 safe harbor system is

askew.”); see also id. at 109, 136. Simply put, ISPs no

longer need the leg up provided to them under a

DMCA enacted to facilitate an emerging Internet, and

in fact, have begun, as the Copyright Office and other

first-hand accounts illustrate, to slacken in complying

altogether. It is unsettling to imagine what they will

feel emboldened to do pursuant to further relaxation

of the law, with the gutting of vicarious liability.

With

an Internet

now

boasting

nearinstantaneous download speeds, every day, hour, and

even minute that a pirated copy remains online can

be incredibly damaging. See MUSO Study Shows

Strong Correlation Between Box Office and

Unlicensed

Audience

Data,

MUSO,

https://www.muso.com/magazine/correlationbetween-box-office-and-unlicensed-audience-data

(last visited Sept. 19, 2024). Creators who have

labored years over a single work face ruination with

the click of an infringer’s mouse. With piracy on the

rise, now more than ever, creators need meaningful

recourse to protect their works, as copyright intended.

In the face of the existing disequilibrium of Section

512, which nonetheless remains creators’ best tool for

fighting infringement, there is no room for additional

error. Yet that is exactly what the Fourth Circuit’s

outlier ruling on vicarious liability occasions. The

DMCA’s support for creators will be further undercut

as ISPs are emboldened to adopt infringement as part

of their profit models. This ruling will allow the foxes

rule of the henhouse, as ISPs bent only on their

bottom line will give swathes of infringers carte

blanche to remain online, infringing, and subverting

creators’ revenue streams and livelihoods. Creators

will suffer and be forced to reconsider participation in

their fields. Society will miss out on what the

Founding Fathers intended, progress.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

NANCY E. WOLFF

Counsel of Record

ELIZABETH SAFRAN

COWAN DEBAETS ABRAHAMS

& SHEPPARD LLP

60 Broad Street, 30th Floor

New York, New York 10004

Tel: (212) 974-7474

nwolff@cdas.com

KEVIN MADIGAN

1331 F Street, NW, Suite 950

Washington, DC 20004

Counsel for Amicus Curiae

September 19, 2024

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.