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

Supreme Court briefMay 27, 2025

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Nos. 24-171 and 24-181

In the Supreme Court of the United States

COX COMMUNICATIONS, INC., ET AL.,

PETITIONERS

SONY MUSIC ENTERTAINMENT, ET AL.

SONY MUSIC ENTERTAINMENT, ET AL., PETITIONERS

COX COMMUNICATIONS, INC., ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

D. JOHN SAUER

Solicitor General

Counsel of Record

YAAKOV M. ROTH

Acting Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

DANIEL TENNY

SARAH N. SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Copyright Act of 1976 (Copyright Act), 17

U.S.C. 101 et seq., grants copyright holders the exclusive rights to perform, display, reproduce, and distribute their protected works. 17 U.S.C. 106. Any person

who violates those rights is a copyright infringer and is

liable for actual or statutory damages. 17 U.S.C. 501

(2018 & Supp. I 2019); 17 U.S.C. 504. The questions presented in these petitions concern whether, and under

what circumstances, an internet service provider (ISP)

can be held secondarily liable for acts of copyright infringement committed by its subscribers. The questions presented are as follows:

1. Whether an ISP that continues to provide internet access to particular subscribers, after being notified

that those subscribers’ accounts have been used to commit acts of copyright infringement, is contributorily liable for future copyright infringement on those accounts.

2. Whether a contributory copyright infringer “willfully” violates the Copyright Act under 17 U.S.C.

504(c)(2) when it acts with knowledge that the direct infringer’s actions are unlawful but does not know that its

own conduct is unlawful.

3. Whether vicarious liability for copyright infringement requires proof that the defendant derived a financial benefit from the acts of infringement.

(I)

RELATED PROCEEDINGS

United States Court of Appeals (4th Cir.):

Sony Music Entm’t v. Cox Commc’ns, Inc., No. 211168 (Feb. 20, 2024)

United States District Court (E.D. Va.):

Sony Music Entm’t v. Cox Commc’ns, Inc., No. 18cv-950 (Jan. 12, 2021)

(II)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Discussion ...................................................................................... 7

I. This Court should review the court of appeals’

contibutory-infringement holding .................................. 8

A. An ISP is not liable for contributory

terminate subscribers after receiving

notices of infringement ............................................. 8

B. The question presents warrants this Court’s

review ....................................................................... 14

II. This Court should review the court of appeals’

willfulness holding ......................................................... 16

III. This Court should not review the court of appeals’

rejection of Sony’s vicarious-liability theory .............. 19

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Aimster Copyright Litig., In re, 334 F.3d 643

(7th Cir. 2003), cert. denied, 540 U.S. 1107 (2004) ........... 20

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

Inc., 881 F.3d 293 (4th Cir. 2018) ........................ 4, 5, 18, 19

Ellison v. Robertson,

357 F.3d 1072 (9th Cir. 2004) ................................... 6, 19, 22

EMI Christian Music Grp., Inc. v. MP3tunes, LLC,

844 F.3d 79 (2d Cir. 2016), cert. denied,

582 U.S. 915 (2017).............................................................. 19

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

76 F.3d 259 (9th Cir. 1996) ........................................... 19, 20

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

Inc., 443 F.2d 1159 (2d Cir. 1971) .................................. 2, 17

(III)

Cases—Continued:

Page

Kalem Co. v. Harper Bros., 222 U.S. 55 (1911) .................... 2

McLaughlin v. Richland Shoe Co.,

486 U.S. 128 (1988).............................................................. 17

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

Ltd., 545 U.S. 913 (2005) ............................. 2, 3, 8-10, 12, 19

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

508 F.3d 1146 (9th Cir. 2007) ............................................. 16

Safeco Ins. Co. v. Burr, 551 U.S. 47 (2007) ......................... 17

Shapiro, Bernstein & Co. v. H.L. Green Co.,

316 F.2d 304 (2d Cir. 1963) ................................................ 20

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

464 U.S. 417 (1984)........................................................ 2, 8, 9

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985).............................................................. 17

Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023) .......... 7, 10-13

UMG Recordings, Inc. v. Grande Commc’ns

Networks, L.L.C., 118 F.4th 697 (5th Cir. 2024),

petition for cert. pending, No. 24-967 (filed Mar. 6,

2025) ............................................................................. 6, 8, 22

Statutes:

17 U.S.C. 106 ...................................................................... 2

17 U.S.C. 501 (2018 & Supp. I 2019) ................................ 2

17 U.S.C. 504(c)(1) ................................................. 2, 17, 18

17 U.S.C. 504(c)(2) ............................................. 2, 4, 17, 18

Digital Millenium Copyright Act, Pub. L. No.

105-304, 112 Stat. 2860 (17 U.S.C. 512) .............................. 3

17 U.S.C. 512(a) ........................................................... 3, 13

17 U.S.C. 512(i) ................................................................ 14

17 U.S.C. 512(i)(1)(A) .................................................. 3, 15

Statutes—Continued:

Page

17 U.S.C. 512(l) ............................................................ 3, 14

Justice Against Sponsors of Terrorism Act,

Pub. L. No. 114-222, 130 Stat. 852 .................................... 10

Miscellaneous:

Paul Goldstein, Goldstein on Copyright

(3d ed. 2025)......................................................................... 20

H.R. Conf. Rep. No. 796, 105th Cong., 2d Sess. (1998) ..... 14

3 Melville B. Nimmer, Nimmer on Copyright

(LexisNexis 2024) ................................................................. 8

In the Supreme Court of the United States

No. 24-171

COX COMMUNICATIONS, INC., ET AL.,

PETITIONERS

SONY MUSIC ENTERTAINMENT, ET AL.

No. 24-181

SONY MUSIC ENTERTAINMENT, ET AL., PETITIONERS

COX COMMUNICATIONS, INC., ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States in this case. In the view of the

United States, this Court should grant the petition for

a writ of certiorari in Cox Communications v. Sony

Music Entertainment, No. 24-171, and deny the petition in Sony Music Entertainment v. Cox Communications, No. 24-181.

(1)

STATEMENT

These petitions arise out of a lawsuit brought by record companies and music publishers against defendant

Cox Communications, an internet service provider

(ISP). Plaintiffs sought to hold Cox liable for acts of

asserting theories of contributory and vicarious liability. After a jury found Cox liable under both theories,

the Fourth Circuit upheld the jury’s verdict on contributory liability but reversed on vicarious liability.

1. a. Under the Copyright Act of 1976, 17 U.S.C. 101

et seq., copyright owners possess the “exclusive rights”

to perform, display, reproduce, and distribute their copyrighted works, and to prepare derivative works based

upon those works. 17 U.S.C. 106. Any person who violates those rights is a copyright infringer and is liable

for actual damages or statutory damages of up to

$30,000 per infringed work. 17 U.S.C. 501 (2018 & Supp.

I 2019); 17 U.S.C. 504(c)(1). In a case where the “infringement was committed willfully,” a court may award

statutory damages of up to $150,000 per infringed work.

17 U.S.C. 504(c)(2).

Although “[t]he Copyright Act does not expressly

render anyone liable for infringement committed by another,” this Court has recognized doctrines of secondary copyright liability. Metro-Goldwyn-Mayer Studios

Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (quoting

Sony Corp. v. Universal City Studios, Inc., 464 U.S.

417, 434 (1984)); see Kalem Co. v. Harper Bros., 222

U.S. 55 (1911). One who, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another” can be held

liable for contributory infringement. Gershwin Publ’g

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

1162 (2d Cir. 1971) (footnote omitted). And one who

“profits directly from the infringement and has a right

and ability to supervise the direct infringer” infringes

vicariously. Grokster, 545 U.S. at 930 n.9.

b. The Digital Millennium Copyright Act (DMCA),

Pub. L. No. 105-304, 112 Stat. 2860 (17 U.S.C. 512), gave

service providers, including ISPs, a safe-harbor defense

to claims of copyright infringement. That defense

shields ISPs from liability for copyright infringement

based on, among other things, “the provider’s transmitting, routing, or providing connections for, material

through a system or network controlled or operated by

or for the service provider.” 17 U.S.C. 512(a). To qualify for that safe harbor, the service provider must

“adopt[] and reasonably implement[] * * * a policy that

provides for the termination in appropriate circumstances of subscribers * * * who are repeat infringers.”

17 U.S.C. 512(i)(1)(A). The DMCA states that a service

provider’s failure to qualify for the safe harbor “shall

not bear adversely” upon consideration of any defense

asserted by the service provider, including the defense

that its “conduct [wa]s not infringing.” 17 U.S.C. 512(l).

2. a. Cox provides internet service to residential

and commercial subscribers for a flat monthly fee. Pet.

App. 8a.1 Plaintiffs, Sony Music Entertainment and

other record companies and music publishers (collectively Sony), hold the copyrights to numerous musical

works. Id. at 6a, 8a. An association that includes plaintiffs hired MarkMonitor, an anti-piracy company, to

alert ISPs when the users of an ISP’s internet service

infringed plaintiffs’ copyrights by downloading or distributing protected works over peer-to-peer networks

All citations to “Pet. App.” refer to the appendix filed in No. 24181.

using file-sharing protocols, such as BitTorrent. Id. at

8a. Although MarkMonitor can identify the infringer’s

internet protocol (IP) address, only the ISP can match

that address to a subscriber. Id. at 8a-9a, 42a. Cox received a “tidal wave” of such infringement notices. Id.

at 9a. Cox’s responses to the notices included no action,

an email warning, a temporary suspension, or, on a

handful of occasions, termination; Cox’s choice among

those responses depended in part on how many notices

Cox had previously received regarding a particular subscriber’s IP address. Ibid.

Sony sued Cox, alleging theories of contributory and

vicarious copyright liability. Sony limited its case to

acts of infringement committed in 2013 and 2014 on the

accounts of subscribers for whom Cox had received

three or more notices. Pet. App. 10a, 40a. The Fourth

Circuit had previously held that Cox did not qualify for

the DMCA safe harbor during this period because Cox’s

repeat-infringer policy as implemented did not satisfy

the statutory safe-harbor criteria. BMG Rights Mgmt.

(US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 301-305

(2018).

b. On cross-motions for summary judgment, the district court held that the infringement notices sent by

MarkMonitor established Cox’s knowledge of its subscribers’ infringement as a matter of law, thus satisfying one element of Sony’s claim for contributory liability. Pet. App. 9a. After trial, the jury found Cox liable

for vicarious and contributory infringement. Id. at 10a.

The jury also found that Cox had acted willfully,

which increased the maximum statutory damages to

$150,000 (rather than $30,000) per infringed work. Pet.

App. 10a; see 17 U.S.C. 504(c)(2). The relevant instruction told the jury that Cox’s infringement was willful if

“Cox had knowledge that its subscribers’ actions constituted infringement of plaintiffs’ copyrights, acted with

reckless disregard for the infringement of plaintiffs’

copyrights, or was willfully blind to the infringement of

plaintiffs’ copyrights.” C.A. App. 804. Cox objected to

the instruction, but its objection was foreclosed by

Fourth Circuit precedent upholding an identical jury instruction. See BMG, 881 F.3d at 312-313 & n.7; Cox

C.A. Br. 55 n.3. The jury awarded Sony $99,830.29 per

infringed work, for a total award of $1 billion. Pet. App.

10a.

3. The court of appeals reversed in part and affirmed in part. Pet. App. 1a-36a.

a. The court of appeals upheld the jury verdict on

contributory liability. Addressing the “knowledge of

the infringing activity” element, the court declined to

disturb the district court’s determination that notices of

past infringement on a particular subscriber’s account

established Cox’s knowledge that the subscriber was

substantially certain to infringe in the future. The court

held that Cox had forfeited any argument that the

future-infringement question should have been submitted to the jury. Pet. App. 19a; see id. at 19a-21a.

The court of appeals then turned to the materialcontribution element. The court held that the jury’s

verdict was adequately supported by evidence that (a)

Cox’s internet service was indispensable to the infringement on its network and (b) Cox had failed to address

the infringement despite specific knowledge that it was

occurring. Pet. App. 24a, 27a. The court determined

that, while a mere failure to take affirmative steps to

prevent unlawful conduct by others is ordinarily insufficient to establish contributory liability, “supplying a

product with knowledge that the recipient will use it to

infringe copyrights” is the sort of “culpable conduct”

that is “ ‘equivalent to aiding and abetting the infringement.’ ” Id. at 25a (quoting Cox C.A. Br. 43). The court

also took the view that “providing the means to infringe” while knowing that the recipient will act illegally

“is culpable pursuant to the common law rule that a person is presumed to intend the substantially certain results of his acts.” Id. at 26a (emphasis omitted).

b. Because Cox had not challenged the willfulness

instruction before the panel, the court of appeals also

affirmed without analysis the jury’s finding that the infringement was willful. See Pet. App. 8a, 32a & n.7.

c. As to vicarious liability, however, the court of appeals reversed the verdict against Cox. Pet. App. 11a19a. The court observed that Cox charged a flat

monthly fee to each of its subscribers, regardless of that

person’s online activities. Id. at 12a. The court found

no evidence that customers were drawn to Cox’s services or were willing to pay more for those services because of the ability to infringe. See id. at 15a-18a (citing

Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir.

2004)). The court rejected Sony’s argument that Cox

had derived a financial benefit from subscribers’ infringement because Cox had declined to terminate subscribers “in order to continue collecting their monthly

fee.” Id. at 16a. “An internet service provider would

necessarily lose money if it canceled subscriptions,” the

court explained, “but that demonstrates only that the

service provider profits directly from the sale of internet access,” not that it profits directly from “the acts of

infringement.” Id. at 17a. In light of its ruling as to the

financial-benefit requirement, the court declined to consider whether Sony had established the second prerequisite to vicarious liability—i.e., that Cox possessed the

“right and ability to supervise its subscribers.” Id. at

12a.

d. Although “the vicarious and contributory infringement claims were predicated on the same conduct,” and the maximum statutory damages for each

were “identical,” the court of appeals remanded for a

new damages trial. Pet. App. 28a. The court explained

that it could not be confident that the jury’s “highly discretionary” choice of the appropriate award within the

statutory range was uninfluenced by the vicariousinfringement verdict. Ibid.

4. The court of appeals denied a petition for rehearing en banc. Pet. App. 134a.

DISCUSSION

This Court should grant certiorari to address the

first question presented in Cox’s petition (No. 24-171):

whether an ISP materially contributes to copyright infringement by continuing to provide internet access to

particular subscribers after receiving notice that copyright infringement has occurred on their accounts. The

court of appeals’ decision holding Cox liable departs

from this Court’s contributory-infringement precedents. It is also in substantial tension with this Court’s

recent analysis of the common law of secondary liability

in Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023). The

contributory-infringement question is legally and practically important, and courts of appeals have taken divergent approaches to the question.

The Court should also grant review of the second

question presented in Cox’s petition, which concerns

the circumstances under which a contributory infringer

can be held liable for enhanced statutory damages

based on a finding of “willful” infringement. The jury

in this case was instructed that it could find Cox’s

violations willful if Cox knew that its subscribers had

committed infringement. That instruction was mistaken because it allowed the jury to award enhanced

damages even if Cox reasonably believed that its own

conduct in declining to terminate infringing subscribers’ internet access was consistent with the Copyright

Act.

The Court should deny review, however, on the

vicarious-liability question presented in Sony’s petition

(No. 24-181). The court of appeals correctly held that a

plaintiff alleging vicarious infringement must show that

the defendant profited from the infringement. There is

no disagreement among the courts of appeals on this

question.

I. THIS COURT SHOULD REVIEW THE COURT OF APPEALS’ CONTIBUTORY-INFRINGEMENT HOLDING

A. An ISP Is Not Liable For Contributory Copyright Infringement For Failing To Terminate Subscribers After

Receiving Notices Of Infringement

1. a. The Copyright Act does not expressly address

secondary liability for copyright infringement. Accordingly, determining the contours of contributory infringement is “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.” Sony

Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435

(1984). The secondary-liability doctrines this Court has

adopted in the copyright context “emerge[] from common law principles,” Metro-Goldwyn-Mayer Studios

Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005), and

“form[] an outgrowth of the tort concept of enterprise

liability.” 3 Melville B. Nimmer, Nimmer on Copyright

§ 12.04 (LexisNexis 2024).

This Court has addressed secondary copyright liability in two modern-era cases, Sony and Grokster. The

defendant in Sony manufactured a product—home

video tape recorders—that many customers used to infringe but that was also “capable of substantial noninfringing uses.” 464 U.S. at 442. The Court concluded

that the manufacturer’s “sale of such equipment to the

general public does not constitute contributory infringement of [the plaintiffs’] copyrights.” Id. at 456;

see id. at 442-456. As the Court subsequently explained,

Sony stands for the proposition that “distributing a

product with alternative lawful and unlawful uses, with

knowledge that some users would follow the unlawful

course,” is an insufficient basis for “presuming or imputing intent to cause infringement.” Grokster, 545

U.S. at 933, 941.

In Grokster, by contrast, this Court held that liability

for contributory infringement could properly be imposed on two companies that had distributed software

for peer-to-peer sharing of electronic files. 545 U.S. at

919-920, 923-924. The software companies had received

notice that millions of specific copyrighted files could be

obtained using the software, and the companies knew

that users were unlawfully downloading the copyrighted files. Id. at 923. In ruling against the companies, however, the Court did not find that knowledge

dispositive. Instead, the Court emphasized that the software companies had “clearly voiced the objective that

recipients use [the software] to download copyrighted

works,” and had taken “active steps to encourage infringement.” Id. at 924. Those steps provided “direct

evidence” of the companies’ “unlawful purpose.” Id. at

935. The Court emphasized that the defendants’ “objective” was to cause copyright infringement, and that

“mere knowledge of infringing potential or of actual infringing uses” of a multi-use product are not sufficient

to trigger liability. Id. at 937, 941.

Taken together, Sony and Grokster make clear that

contributory liability for copyright infringement requires more than knowledge that others have put the

defendant’s products to infringing uses. Instead, it requires “culpable intent” to cause infringement. Grokster, 545 U.S. at 934. The Grokster Court recognized

that such intent may properly be inferred when a defendant manufactures a product that lacks substantial

noninfringing uses, id. at 932, or when the defendant affirmatively encourages infringing uses of a multi-use

product, id. at 935. In assessing what (if any) additional

circumstances might support a finding of the requisite

culpable intent, it is appropriate to look to “rules of

fault-based liability derived from the common law.” Id.

at 934-935 (footnote omitted).

b. This Court recently discussed and applied

common-law rules of secondary liability in Taamneh,

supra. That decision addressed the circumstances under which providers of routine services can be held liable for wrongful acts committed by others through the

use of those services. The Court held that the plaintiffs,

victims of a terrorist attack carried out by ISIS, had

failed to state a claim against social-media platforms under the Justice Against Sponsors of Terrorism Act,

Pub. L. No. 114-222, 130 Stat. 852, a statute that

adopted the common law of civil aiding-and-abetting liability. Taamneh, 598 U.S. at 483-485, 488. In so holding, Taamneh provided significant guidance on the common law of secondary liability.

The plaintiffs in Taamneh alleged that the defendant

social-media platforms knew that ISIS used their

services to recruit new adherents and to raise funds for

terrorism, but had “failed to stop ISIS despite knowing

it was using those platforms.” 598 U.S. at 505; see id.

at 478-482. The Court explained that, at common law,

the “conceptual core” of secondary liability was that a

defendant had “consciously and culpably ‘participated’

in a wrongful act so as to help ‘make it succeed.’ ” Id. at

493 (brackets and citation omitted). Were it otherwise,

the Court observed, “mostly passive actors like banks

[would] become liable for all of their customers’ [wrongdoing] by virtue of carrying out routine transactions,”

and “those who merely deliver mail or transmit emails

could be liable for the tortious messages contained

therein.” Id. at 489, 491.

The Court held that the plaintiffs’ allegations about

the social-media platforms’ conduct did not meet the applicable standard. It was not enough, the Court explained, that the platforms allegedly had allowed ISIS

to post content, had provided algorithms that “matched

ISIS-related content to users most likely to be interested in that content,” and had “kn[own] that ISIS was

uploading this content.” Taamneh, 598 U.S. at 498. The

Court viewed the platforms’ provision of such “infrastructure” on generally applicable terms—even with

knowledge that the infrastructure was being misused—

as “passive assistance” rather than the requisite “active

abetting.” Id. at 499. The Taamneh Court’s reasoning

reinforces the conclusion that imposing liability on Cox

for copyright infringement committed by its users,

based on Cox’s failure to terminate service to IP addresses associated with infringement, is incompatible

with traditional common-law limitations on secondary

liability.

c. If Cox had explicitly or implicitly marketed its

service as being particularly useful for infringers, or if

it had encouraged subscribers to use Cox’s internet service to infringe, liability might be appropriate. See

Grokster, 545 U.S. at 937-938. But as the court of appeals acknowledged, Cox’s business model was indifferent to whether its subscribers used the internet for lawful or unlawful purposes. Pet. App. 19a. Sony’s theory

thus resembles the one the Court rejected in Taamneh,

where the defendants allegedly had “fail[ed] to stop

ISIS from using the[ir] platforms,” but “there [we]re no

allegations that defendants treated ISIS any differently

from anyone else.” 598 U.S. at 500.

Reasoning that a “person is presumed to intend the

substantially certain results of his acts,” the court of appeals emphasized that Cox had supplied internet access

“with knowledge that the recipient [would] use it to infringe copyrights.” Pet. App. 25a-26a. That analysis

cannot be squared with Grokster’s recognition that

“knowledge * * * of actual infringing uses” is not

enough for liability. 545 U.S. at 937. Nor can it be reconciled with the Taamneh Court’s rejection, based on

established common-law principles, of a rule that “would

effectively hold any sort of communication provider liable for any sort of wrongdoing merely for knowing that

the wrongdoers were using its services and failing to

stop them.” 598 U.S. at 503.

Sony suggests that Cox’s conduct was culpable because Cox continued to provide internet service to “specific customer[s]” that MarkMonitor had identified as

prior repeat infringers. No. 24-171 Br. in Opp. 19. That

argument likewise cannot be squared with Taamneh,

where this Court emphasized that the parties had not

identified any common-law principle “that would require

* * * communication-providing services to terminate

customers after discovering that the customers were

using the service for illicit ends.” 598 U.S. at 501. Adoption of Sony’s rule would also threaten liability for other

service providers (e.g., an electric utility) that might be

asked to cut off service to identified customers who had

previously used the service for unlawful purposes.

In addition, Sony overstates the specificity of Cox’s

knowledge. Even accepting “that notices of past infringement” establish Cox’s “knowledge that the same

subscriber was substantially certain to infringe again,”

Pet. App. 22a, the notices made Cox aware of past and

likely future infringement on particular accounts; they

did not identify the specific infringing users of Cox’s internet services. See C.A. App. 509-510. Many accounts

that triggered multiple notices belonged to hotels, hospitals, universities, and regional ISPs serving hundreds

or thousands of individual users. See No. 24-171 Pet. 11

(citing C.A. App. 663-664, 1743). Under the decision below, Cox would be held liable for direct infringement

committed by any of those users, whose identities it

does not know and with whom it has no contractual relationship.

d. Finally, the DMCA safe harbor does not suggest

that ISPs can be held liable in these circumstances. The

DMCA gives “service provider[s]” a defense to copyright-infringement damages liability arising out of several activities, including, as relevant here, “the provider’s transmitting, routing, or providing connections

for, material through a system or network” controlled

by the service provider. 17 U.S.C. 512(a). The defense

afforded by Section 512(a) is available only if the service

provider “adopt[s] and reasonably implement[s] * * * a

policy that provides for the termination in appropriate

circumstances of subscribers * * * who are repeat infringers.” 17 U.S.C. 512(i).

That provision limits ISPs’ exposure to secondary liability for copyright infringement by creating an additional defense. The provision does not imply, however,

that conduct falling outside the safe harbor renders an

ISP liable. To the contrary, Section 512(l) states that a

service provider’s failure to qualify for the safe harbor

“shall not bear adversely” on any argument “that the

service provider’s conduct is not infringing under this

title or any other defense.” 17 U.S.C. 512(l); see H.R.

Conf. Rep. No. 796, 105th Cong., 2d Sess. 73 (1998)

(“Section 512 is not intended to imply that a service provider is or is not liable as an infringer either for conduct

that qualifies for a limitation of liability or for conduct

that fails to so qualify.”).

The DMCA was enacted in 1998, when the internet

was in its infancy. Congress could not have foreseen

then how the internet would develop, what role ISPs

would play in modern life, or what forms online piracy

would take. Nor could Congress have known how

contributory-infringement principles would be applied

in this new context. Given those uncertainties, Congress proceeded cautiously, offering a safe harbor in

specified circumstances while expressly disavowing any

implication that conduct falling outside the safe harbor

is infringing.

B. The Question Presented Warrants This Court’s Review

1. The court of appeals adopted a sweeping view of

contributory copyright infringement that has broad

practical implications. The court’s rule subjects ISPs to

potential liability for all acts of copyright infringement

committed by particular subscribers as long as the

music industry sends notices alleging past instances of

infringement by those subscribers.

Given the breadth of that liability, the decision below

might encourage providers to avoid substantial monetary liability by terminating subscribers after receiving

a single notice of alleged infringement. Losing internet

access is a serious consequence, as the internet has become an essential feature of modern life. And because

a single internet connection might be used by an entire

family—or, in the case of coffee shops, hospitals, universities, and the like, by hundreds of downstream users—

the decision below could cause numerous non-infringing

users to lose their internet access.

The DMCA safe harbor does not significantly limit

the practical implications of the decision below. To

qualify for the DMCA safe harbor, an ISP must “adopt[]

and reasonably implement[] * * * a policy that provides

for the termination in appropriate circumstances of subscribers * * * who are repeat infringers.” 17 U.S.C.

512(i)(1)(A). But it is unclear precisely what steps are

necessary to establish and carry out such a policy, particularly as to a subscriber (like an office or hospital)

that is unable to prevent infringement by every user of

its internet connection.

2. The courts of appeals disagree about the appropriate standard for imposing contributory liability in

this setting, although none of their decisions has

adopted the correct approach dictated by this Court’s

precedents. The split of authority is best understood as

a 2-1 split, with the Fifth and Ninth Circuits following a

different course than the Fourth Circuit did below.

The Ninth Circuit has adopted a “simple measures”

test, holding that a defendant (there, a search engine)

would be contributorily liable if it had “actual know-

ledge that specific infringing material” was available on

its system and could “take simple measures to prevent

further damage to copyrighted works,” but failed to

take such measures. Perfect 10, Inc. v. Amazon.com,

Inc., 508 F.3d 1146, 1172 (2007) (citations, emphases,

and internal quotation marks omitted). That test diverges from the approach of the court below, which affirmed the jury’s verdict against Cox even in the absence of a “simple measures” instruction. See Pet. App.

25a-26a; C.A. App. 788-804 ( jury instructions).

The Fifth Circuit joined the Ninth Circuit in UMG

Recordings, Inc. v. Grande Commc’ns Networks, L.L.C.,

118 F.4th 697 (2024), petition for cert. pending, No. 24-967

(filed March 6, 2025), which addressed a suit brought by

found the ISP liable after receiving a simple-measures

instruction. Id. at 715. The Fifth Circuit rejected the

defendant ISP’s challenge to that instruction, id. at 716717, and the court applied the simple-measures test in

assessing (and rejecting) the ISP’s argument that the

jury verdict should be overturned, id. at 719-720. Although the Fifth Circuit’s decision upholding the verdict

cannot be squared with the requirement of conscious

and culpable participation in the infringing conduct, see

pp. 9-11, supra, that court’s choice of a different standard in resolving a factually similar case provides an additional reason for this Court’s review.

II.

THIS COURT SHOULD REVIEW THE COURT OF APPEALS’ WILLFULNESS HOLDING

The Court should also grant certiorari on the second

question presented in Cox’s petition, which concerns

the standard used to identify “willful” violations by a

contributory copyright infringer.

A. 1. The Copyright Act authorizes enhanced damages of up to $150,000 per work (rather than the

otherwise-applicable cap of $30,000 per work) where a

violation was committed “willfully.” See 17 U.S.C.

504(c)(1) and (2). In construing statutory provisions

that impose civil liability, this Court has generally read

the word “willfully” to require either knowledge or

reckless disregard that the defendant’s conduct was unlawful. See Safeco Ins. Co. v. Burr, 551 U.S. 47, 57

(2007); Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 125-126 (1985). “If [a defendant] acts reasonably in determining its legal obligation, its action cannot

be deemed willful.” McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 135 n.13 (1988).

Here, the jury was instructed that Cox’s conduct was

willful if “Cox had knowledge that its subscribers’ actions constituted infringement of plaintiffs’ copyrights,

acted with reckless disregard for the infringement of

plaintiffs’ copyrights, or was willfully blind to the infringement of plaintiffs’ copyrights.” C.A. App. 804.2

That instruction (which was consistent with circuit

precedent) was erroneous. The instruction allowed the

jury to find that Cox had acted “willfully” if Cox knew

that its subscribers’ actions were unlawful, even if Cox

reasonably believed that Cox itself was permitted to

continue providing internet access to infringing accounts.

As the court of appeals recognized, moreover, a defendant’s “knowledge of the infringing activity” is a prerequisite to any liability for contributory infringement.

Pet. App. 19a (citation omitted); see Gershwin Publ’g

In light of binding circuit precedent, Cox did not challenge the

instruction before the court of appeals panel, but Cox preserved the

challenge for further review. See Cox C.A. Br. 55 n.3.

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

1162 (2d Cir. 1971). If (as the court of appeals believed)

such knowledge is a sufficient basis for finding that

the defendant acted willfully, then all contributory infringers could be treated as willful violators. That result would undermine Congress’s two-tiered statutorydamages scheme, under which enhanced damages are

reserved for the most culpable violators. See 17 U.S.C.

504(c)(1) and (2).

2. In an earlier decision, the court of appeals upheld

a similar instruction on the ground that “willfulness in

contributorily infringing “with knowledge that one’s

subscribers are infringing is consistent with at least

reckless disregard for the copyright holder’s rights.”

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

Inc., 881 F.3d 293, 312-313 (4th Cir. 2018). Sony makes

the same argument in defense of the jury instruction.

24-171 Br. in Opp. 29. But a secondary infringer could

hold a reasonable, good-faith belief that its own conduct

is lawful, even if it knows that the direct infringer’s conduct is not. If Cox reasonably held the view it defends

in this Court with respect to the first question presented in its petition—i.e., that the Copyright Act did

not require Cox to terminate service to identified infringing accounts—then any violations Cox committed

were not willful, even if Cox’s view of its own obligations

is ultimately held to be incorrect.

B. The court of appeals’ willfulness holding warrants this Court’s review, given the substantial legal error reflected in the instruction and its apparent prevalence in copyright suits brought against ISPs. See

Grande Commc’ns, 118 F.4th at 706 & n.3 (noting that

the jury found the ISP’s contributory infringement to

be “willful,” but that any challenge to that finding was

abandoned on appeal); BMG, 881 F.3d at 312-313.

III. THIS COURT SHOULD NOT REVIEW THE COURT OF APPEALS’ REJECTION OF SONY’S VICARIOUS-LIABILITY

THEORY

In its own petition for a writ of certiorari, Sony asks

this Court to review the court of appeals’ holding that

Cox could not be held vicariously liable for its customers’ infringement because Cox did not financially benefit from that infringement. That holding is correct and

does not warrant this Court’s review.

A. 1. Vicarious liability for copyright infringement

is an “outgrowth of the agency principles of respondeat

superior.” Fonovisa, Inc. v. Cherry Auction, Inc., 76

F.3d 259, 261-262 (9th Cir. 1996). It applies “when the

defendant profits directly from the infringement” and

“has a right and ability to supervise the direct infringer.” Grokster, 545 U.S. at 930 n.9. Unlike contributory liability, vicarious liability can apply “even if the

defendant initially lacks knowledge of the infringement.” Ibid.

To establish a defendant’s vicarious liability, a copyright plaintiff must show that the defendant financially

benefits from the acts of infringement and not (as Sony

urges, see No. 24-181 Pet. 12) merely from the broader

operation in which infringement occurs. See Grokster,

545 U.S. at 930 n.9; see also, e.g., Ellison v. Robertson,

357 F.3d 1072, 1079 (9th Cir. 2004) (explaining that the

key question “is whether there is a causal relationship

between the infringing activity and any financial benefit

a defendant reaps”); EMI Christian Music Grp., Inc. v.

MP3tunes, LLC, 844 F.3d 79, 99 (2d Cir. 2016) (requiring evidence that the defendant had “an obvious and direct financial interest in the exploitation of copyrighted

materials”) (citation omitted), cert. denied, 582 U.S. 915

(2017). Direct financial benefit from infringement can

be established in different ways and does not require

evidence of a direct profit from the sale of specific

goods.

A direct financial benefit from infringement can be

established through evidence that the infringing activity served as a “draw” that attracted customers to the

defendant’s business. See Fonovisa, 76 F.3d at 263.

Dance halls, for example, financially benefit when hired

bands play popular, copyrighted music because such

performances “provide the proprietor with a source of

customers and enhanced income.” Shapiro, Bernstein

& Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir.

1963). Dance halls might also benefit by paying less to

hire infringing bands than to hire bands that pay copyright royalties and thereby incur greater costs. In re

Aimster Copyright Litig., 334 F.3d 643, 654 (7th Cir.

2003), cert. denied, 540 U.S. 1107 (2004). By contrast, a

landlord who charges a fixed rent regardless of what its

tenant does on the leased premises does not reap a direct financial benefit from any acts of infringement the

tenant might commit and so would not be vicariously liable for the tenant’s conduct. See Shapiro, 316 F.2d at

307-308; Paul Goldsten, Goldstein on Copyright § 8.2.1

(3d. ed. 2025).

2. The court of appeals correctly held that Sony had

not satisfied its burden of showing that Cox financially

benefited from infringement on its network. As the

court explained, Cox charges its customers a flat fee for

internet service, regardless of what its users do online.

Pet. App. 17a. There was no evidence that Cox would

be forced to collect a lower fee if the users of its internet

service ceased to infringe; that subscribers were drawn

to Cox’s internet service because of the ability to engage

in copyright infringement using that service; or that

Cox had used the opportunity for customers to infringe

to lend credibility to the service it offered. See id. at

16a-19a. Cox thus did not “in any sense” have “a financial interest in its subscribers committing infringement.” Id. at 19a. Cox therefore was more like a landlord, whose business model is agnostic as to whether a

tenant infringes, than a dance-hall proprietor who benefits from infringing performances.

In arguing that the Fourth Circuit construed the

direct-financial-benefit inquiry too narrowly, Sony

seeks to draw from the dance-hall and similar cases the

proposition that “profit from a business that permits infringement is profit from infringement.” No. 24-181

Pet. 12. As explained above, however, vicarious liability

requires that the defendant benefit financially from the

infringing activity. See pp. 19-20, supra. Sony attempts to meet that burden with evidence that Cox “declined to terminate infringing subscribers’ internet service in order to continue collecting their monthly fees.”

No. 24-181 Pet. 21; see Pet. App. 16a. But that evidence

does not establish that Cox financially benefited from

the infringement; it shows only that Cox was unwilling

to forgo profits for the provision of general internet services in order to ensure that no infringement occurred.

By the same token, proof that a landlord declined to absorb a financial loss by evicting a tenant who was engaged in infringing activity on the premises would not

establish that the landlord had a financial interest in the

infringement itself.

B. The vicarious-liability question does not warrant

the Court’s review. The decision below is correct. And

there is no conflict among the circuits, which all apply

the same financial-benefit requirement to different fact

patterns. Sony has not identified any court of appeals

decision that reached a different result on facts similar

to those here. See 24-181 Pet. 12-25. To the contrary,

in the one other ISP case that Sony cites, the court of

appeals declined to find the defendant ISP vicariously

liable, emphasizing the plaintiff’s failure to establish

that the ISP had “received a direct financial benefit

from providing access to the infringing material.” Ellison, 357 F.3d at 1079. And in the Grande Commc’ns

suit against a different ISP, the district court rejected

the vicarious-liability claim, a decision the copyright

holder did not appeal. See 118 F.4th at 705.

In addition, this case does not involve a typical

vicarious-liability fact pattern, where a plaintiff seeks to

hold a principal liable for the misconduct of its employee

or other agent. Instead, the relationship at issue is one

between a business and its infringing customer. Even

if hiring a band to play infringing music that draws in

customers can suffice to hold a dance hall vicariously liable for the infringement, it does not follow that a dance

hall’s failure to prevent its customers from recording

live performances of copyrighted music on their cell

phones would have the same result. That idiosyncratic

feature of this case reinforces the conclusion that Sony’s

petition for a writ of certiorari does not warrant this

Court’s review.

CONCLUSION

The petition for a writ of certiorari in No. 24-171

should be granted. The petition for a writ of certiorari

in No. 24-181 should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

YAAKOV M. ROTH

Acting Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

General

DANIEL TENNY

SARAH N. SMITH

Attorneys

MAY 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.