Will Lower Courts Find Ways Around Cox v. Sony? You Betcha
This post covers two more Michael Grecco cases (see links below for additional blog coverage on his litigation campaign). The two decisions provide an interesting compare/contrast.
The Twitter ruling also gives an early sense of how lower courts might navigate the Cox v. Sony Supreme Court ruling. Though it’s only a single datapoint and is surely skewed because the judge had written the opinion before the Supreme Court’s decision, the court’s “solution” highlights several ways courts can work around the Cox ruling that may undermine its seemingly defense-favorable result.
Michael Grecco Productions, Inc. v. TikTok, Inc., 2025 WL 4672998 (C.D. Cal. March 12, 2025). The CourtListener page.
[Note 1: This year-old opinion just showed up in my alerts.]
[Note 2: Plaintiff’s lawyer is CopyCat Legal and Lauren M. Hausman, who I mentioned in this other copyright lawsuit against TikTok. I don’t love the firm’s filings, but I do like the firm’s cat-themed imagery.]
This case relates to 22 photos that users allegedly uploaded to TikTok. The plaintiff claims that it sent DMCA takedown notices, but allegedly the works didn’t come down.
Direct Infringement
Defendant contends Plaintiff has not and cannot allege any volitional conduct by TTI to support its direct copyright infringement claim. Plaintiff admits “a direct theory of liability has not been properly set forth in the FAC”
+5 points for the plaintiff firm’s candor, -10 points for bad drafting.
Vicarious Infringement
Plaintiff alleges TTI “has the right and ability to control the infringing acts of its users yet declined or failed to stop its users from engaging in its infringing activity.” As support, Plaintiff alleges it sent multiple DMCA takedown notices to TTI. Missing from these allegations are any details related to the contents of these notices, including when they were sent and how they identified the media that infringed the Work. Plaintiff’s assertion it sent multiple DMCA takedown notices to Defendant, alone, is insufficient to plead Defendant had sufficient knowledge to exercise the requisite control over the allegedly infringing users.
A lot to dislike here. First, the plaintiff uses the less-preferred variant of the vicarious infringement test from the Grokster opinion, which has cluttered up the considerations. Second, vicarious and contributory infringement doctrines have effectively merged if both are triggered by the same takedown notices. This is more of a 9th Circuit problem than a problem with this opinion, but it’s still a problem. At minimum, scienter has unambiguously crept into the traditionally strict-liability vicarious infringement test.
Contributory Infringement
Same pleading problems with the factual imprecisions about the DMCA takedown notices.
Developments Since This Ruling
The plaintiff filed a second amended complaint, and the parties had an unsuccessful mediation. Both parties have summary judgment motions pending. The judge said in September that he would rule on those motions without a hearing, but no word since.
An Observation
In a footnote, the court adds “The FAC contains typographical errors, whereby Plaintiff repeats certain paragraph numbers.” Oops. That sloppiness is in addition to the pleading defects of not properly alleging direct infringement and not providing adequate details about the DMCA takedown notices. In light of the Twitter ruling, this data might help form a hypothesis about the relative performances of the different law firms.
Michael Grecco Productions, Inc. v. Twitter, Inc., 2026 WL 917606 (C.D. Cal. March 31, 2026)
This case involves the same plaintiff and same judicial district (C.D. Cal.) as the TikTok lawsuit, but the differences include: different plaintiff’s counsel (One LLP and Blakey Law Group), different defense counsel (Willenken and Quinn Emanuel), different procedural stage (judgment on the pleadings instead of motion to dismiss), different judge, different time (1 year later), and different outcome (plaintiff’s claims survive the challenge).
According to the complaint, “Grecco sent DMCA takedown emails to Twitter for the copyright infringement of the alleged 111 infringed upon copyrighted materials….Twitter has not taken action as to the DMCA takedown requests pertaining to the 111 copyrighted materials.”
Direct Infringement
Twitter contends that it did not commit volitional acts as the infringing conduct was posted by third party users. The 2AC argues that Twitter actively and willfully engaged in the infringement by refusing to honor valid DMCA takedown requests pertaining to the infringing content submitted by Grecco.
Per the plaintiff, not taking any action qualifies as “actively and willfully engaging” in infringement? Really? Yet, remarkably, the plaintiff makes the sale on this argument:
the 2AC provides that Twitter was: (1) on notice of the alleged infringing material; and (2) Twitter failed to address the DMCA takedown requests and remove the material from its platform. The alleged failure to remove the alleged infringing material is within Twitter’s exercise of control, not third-party users. By pleading that Twitter allowed the alleged infringing material to remain on its platform and failed to respond to the DMCA takedown requests, Grecco has properly pleaded that Twitter engaged in the active display of the infringing material.
What does “active display” mean? The grammar reminds me of the Seinfeld finale.
Note how the court’s move gets around Cox v. Sony. This court says that Twitter’s failure to respond to a takedown notice constitutes DIRECT infringement because the takedown notice turns non-volitional conduct into volitional conduct. No contributory infringement required, which means Cox v. Sony doesn’t necessarily block this doctrinal move at all.
The court’s direct infringement doctrinal move shouldn’t work. I think this ruling diverges from the Ninth Circuit standards on online volition (and it clearly conflicts with the Second Circuit’s Cablevision’s ruling), but who knows because the Ninth Circuit has done a poor job articulating the standard. The judge distinguishes the VHT v. Zillow ruling because the defendant in that case honored the takedown notice, while here Twitter allegedly did not, and the court thinks that distinction matters to volitional conduct. I wonder if the Ninth Circuit will find this judge’s doctrinal contortions persuasive.
Note that Twitter could still theoretically defeat the direct infringement claim using the DMCA 512(c) safe harbor. However, if Twitter didn’t honor the takedown notices, then it should also be disqualified from 512(c).
Contributory Copyright Infringement
Although this court knew of the Cox ruling (more on that in a moment), the court applied the now-deprecated Gershwin scienter + material contribution test.
Unlike the TikTok case above, Grecco prepared the takedown notice details properly: “Grecco details the copyright material, the copyright registration information, and the DMCA takedown requests submission dates.” With adequate detail about the takedown notices before the court, “the Court finds that Grecco sufficiently alleged a simple measure, and thus material contribution under a claim for contributory copyright infringement. As the Court finds that Grecco has sufficiently pled actual knowledge and material contribution.”
For completeness, the court shuts down the inducement path: “the failure to remove does not speak to an objective to promote.”
But what about Cox v. Sony? In a footnote, the court says:
Grecco submitted numerous DMCA takedown requests, which included the copyright and infringing material information—placing Twitter on notice of the infringing activity. Twitter, however, took no action to remove the infringing materials. Grecco also alleges that Twitter’s acts of infringement were “willful.” As such, Cox is distinguishable from this matter.
The court surely had written most or all of this opinion before Cox came out, and the court sought the path of least resistance to issue the already-drafted opinion without rewriting it. But c’mon. In Cox, the plaintiffs submitted many DMCA notices, and Cox took no action. Perhaps the court is trying to draw a line between hosting and Internet access without actually saying so? With respect to the “willful” allegations, if failure to remove in response to a takedown notice is a willful infringement, then Cox was willful too. But the court doesn’t explain how Twitter was “willful” other than reciting Grecco’s bare assertion. Not helpful.
Vicarious Infringement
Grecco sufficiently pleads that Twitter had the right and ability to supervise the alleged infringing content through the DMCA takedown requests. Upon reviewing Grecco’s requests, Twitter could have removed the content from its platform
The 2AC asserts that Twitter has generated revenue through the increased traffic from the infringing content. And this is all that is needed at this stage. Grecco need not explain at this stage how the infringing content operates as a draw to consumers, but merely that this specific infringing content does.
As with the TikTok ruling, the vicarious infringement test has largely collapsed into the contributory (and now direct) infringement tests. What a mess. The Ninth Circuit, and ultimately the Supreme Court, needs to clean up these tests.
Statute of Limitations
The court applies a 3-year limitation from date of posting (rather than from date of last download, which other courts have applied), which screens out 38 of the 111 works at issue.
Implications
I could see the Ninth Circuit reversing each and every part of the Twitter decision, i.e., saying there is no direct, contributory, or vicarious infringement, and no SOL problem. At minimum, this ruling shows how lower courts are struggling to consistently apply the infringement tests to online hosts.
The Twitter ruling also provides an early indicator that Cox may not be as much of a defense win as it appeared. Lower courts can, and likely will, make doctrinal countermoves to bail plaintiffs out.
The Twitter ruling might also illustrate how the DMCA safe harbors have converged with the underlying doctrinal tests. This opinion suggests that failing to follow the DMCA takedown procedures virtually ensures liability on the prima facie elements too, thus collapsing the prima facie elements and the DMCA safe harbor elements.
Judge Maame Ewusi-Mensah Frimpong wrote the Twitter opinion. I didn’t see anything in her background that explains why she bent over backwards for the plaintiff here.
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