Contributory Infringement

Inducement to Infringe. The court says it’s not inducement when “Plaintiff merely alleges that Defendant knowingly allowed listings of infringing TJ Karaoke devices to remain active on its website despite having the ability to remove the listings….Nor has Plaintiff alleged facts giving rise to an inference that the ‘principal object’ of Defendant’s online marketplace is the sale of infringing products. [cite to Grokster]”

Tailored to Infringement. The plaintiff did not allege that “Defendant’s service is incapable of substantial or commercially significant noninfringing uses….allegations that a service provider merely had ‘knowledge that a service will be used to infringe’ or ‘fail[ed] to take affirmative steps to prevent infringement’ are insufficient to state a claim for contributory infringement liability.” Given eBay’s scope, I don’t see how a plaintiff could allege that eBay is “incapable of substantial or commercially significant noninfringing uses.”

Vicarious Infringement

Citing Milo & Gabby, the court says the “mere fact that Defendant had the ability to remove listings of infringing devices is not enough to establish that Defendant had both the legal right and the practical ability to stop the third-party sellers’ infringing conduct.” The court doesn’t discuss the direct financial interest prong, which poses a heightened challenge to eBay due to its commission structure.

Did Cox Make a Difference?

The Supreme Court’s Cox v. Sony decision didn’t address vicarious copyright infringement, so that part of the ruling wasn’t affected by the Cox case.

This court did apply the revised Cox standards for contributory copyright infringement, and the application of those factors makes this an even easier case. Lee made knowledge-based allegations, but–as the Cox court seemingly intended–Lee could not spin those allegations to satisfy an intent-based standard. It makes quick work for a defendant like eBay who has taken many steps to reduce copyright infringement.

(It remains to be seen if courts will (1) bend the standards in Cox to distill evidence of intent from knowledge-based allegations, or (2) bend the standards of direct or vicarious infringement to gapfill the narrowed contributory infringement standard. Fortunately, this court did neither. However, it was also a pro se case, not a full-scale assault to degrade the Cox standards that rightsowners will launch eventually).

However, I don’t think Lee’s claims would have gotten far with the pre-Cox jurisprudence either. Courts have routinely rejected staydown demands from plaintiffs. Also, eBay’s honoring of the NOCIs means that it would have likely qualified for the 512(c) safe harbor too. Still, those defenses might not have worked until summary judgment, at significant defense costs, while the Cox precedent easily and decisively ends this case on a motion to dismiss.

Case Citation: Lee v. SBS Corp., 2:26-cv-03144-MCS-E (C.D. Cal. July 9, 2026)

The post eBay Defeats Contributory Copyright Claim–Lee v. SBS appeared first on Technology & Marketing Law Blog.

Coomer v. Lindell, 2026 WL 817370 (D. Colo. March 25, 2026)

Related post. This is more fallout from the efforts to deny the 2020 presidential election results. MyPillows huckster Lindell publicly trashed Dominion Voting and and its president, Coomer. A jury held Lindell and Frankspeech liable for defamation and more. The defendants unsuccessfully tried to overturn the jury verdict post-trial.

Frankspeech invoked Section 230 for its liability for Lindell’s speech. The court disagrees:

Mr. Lindell founded Frankspeech. He regularly acted as its corporate representative, including at trial. He hosted his own show on Frankspeech, broadcasted it through Frankspeech, and used the Frankspeech platform to make and publish statements about Dr. Coomer. There is no evidence that anyone other than Mr. Lindell exercised any meaningful degree of control over the Frankspeech entity. By all accounts, Frankspeech was Mr. Lindell’s corporate alter ego in this context….for § 230 purposes, Frankspeech’s defamatory statements through its agent would plainly qualify as participation in the development of those statements.

Frankspeech also claimed Section 230 for Clement’s remarks at a conference. The court responds: “Frankspeech—through Mr. Lindell and others—sponsored, promoted, and broadcasted the event….a reasonable jury could conclude that Frankspeech’s conduct (including its conduct through Mr. Lindell) created actual or apparent authority for Mr. Clements and other presenters at the Cyber Symposium to act as agents of Frankspeech.”

Murphy v. LinkedIn Corp., 2026 WL 881710 (N.D. Cal. March 30, 2026)

Fraudsters approached Murphy via LinkedIn direct messages. The conversation switched over to WhatsApp, where the fraudsters effectuated their fraud. Murphy’s lawsuit against LinkedIn fails due to Section 230:

Plaintiffs’ claims for negligence, gross negligence, and product liability are premised on a purported duty to “monitor” users, “restrict the accounts of fraudulent actors,” and to suppress “fraudulent activities” by users of LinkedIn’s platform. These claims “necessarily implicate” LinkedIn’s role as a publisher of third-party content because “discharging the alleged duty would require [LinkedIn] to monitor third-party content and prevent” communications between fraudsters and legitimate LinkedIn users. Nor can Plaintiffs sue LinkedIn for breaching a “duty to warn.” LinkedIn’s “role as a publisher of third-party content does not give it a duty to warn users of ‘a general possibility of harm’ resulting from” using LinkedIn’s services.

The plaintiffs unsuccessfully tried the defective design workaround:

Plaintiffs argue that their claims are not based on LinkedIn’s role as publisher, but rather its role “as a product manufacturer and developer of defective algorithms” that facilitated communications between fraudsters and Plaintiffs. But the Ninth Circuit has repeatedly upheld dismissal of negligence and product liability claims framed in the same way. [cites to Doe v. Grindr and Dyroff]

A Roommates.com workaround didn’t work either:

Plaintiffs’ claims are premised on LinkedIn’s neutral tools for connecting users, not on content that LinkedIn created or required users to provide as a condition of using its services. Indeed, LinkedIn expressly informs users that they “have choices about the information” on their profiles, and that users “don’t have to post or upload personal data” that may make them targets of fraud.

To put a finer point on it, if the plaintiffs are complaining about LinkedIn direct messages, then those messages may be covered by the ECPA just like email, and LinkedIn may have had limited legal rights to monitor the conversations at all.

Finally, the plaintiffs tried a TOS-based workaround, poured into consumer protection laws. The court acknowledges that some breach of contract claims may not be preempted by Section 230, but

These claims are premised on the same duties discussed above – duties to monitor, to design products in a different manner, and to warn – that fundamentally seek to hold LinkedIn liable for content created by the fraudsters. Styling these claims as different legal theories does not remove them from Section 230’s scope….

Plaintiffs seek to hold LinkedIn liable solely based on its general monitoring policy and aspirations to remove fraudulent users from its platform. Moreover, LinkedIn expressly disclaims liability by notifying users that they “may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful,” and that LinkedIn “generally does not review content provided by [its] Members or others.”

McNeal v. Calvin, 2026 WL 879228 (E.D. Mo. March 31, 2026)

This case relates to the TV show Love & Marriage: Huntsville, shown on OWN (Oprah’s channel). The plaintiff, a lawyer (naturally), is one of the women featured in the show. She is upset about online comments about the show and sued many defendants pro se. The court says “Section 230 of the Communication Decency Act bars Plaintiff’s claims against YouTube, Google, and Tik Tok.” In particular, “The content uploaded by users cannot be attributed to internet service providers based on the theory that users are “agents” of the websites they use.”

Shiva Ayyadurai v. U.S., 2026 WL 879409 (D.C.D.C. March 31, 2026). My prior blog post about a different litigation of his.

This is a jawboning case:

Ayyadurai’s 75-page Complaint alleges that various Massachusetts state officials—none of whom are named as Defendants in this case—federal officials at the Cybersecurity Infrastructure Security Agency (“CISA”), and other government officials unknown to him have coordinated with private companies to regulate and censor his speech by “deplatforming” or “shadowbanning” him—that is, suspending his social media accounts or limiting the reach of his posts. Ayyadurai alleges that the Defendants took these actions in retaliation for posts in which he “articulat[ed] a government employee’s role in destroying the digital ballot images used to tabulate votes” in a prior election.

With respect to the liability of the social media defendants who allegedly got jawboned, the court accepts the 230(c)(2)(A) defense:

Ayyadurai’s Complaint fails to state a claim against the Social Media Defendants based on their content-moderation decisions because he does not plausibly allege that any of those decisions were made in the absence of “good faith” or that they were made for a purpose other than removing content that they “consider[ ] to be … objectionable.”…

conclusory allegations of bad faith are insufficient to state a claim against a platform based on activity within the reach of Section 230(c)(2).

At the same time, the court struggled with applying to Section 230(c)(1) to the removal decisions. Incredibly, it says:

only a few of the decisions restating this broad dictum [from Zeran] have grappled with its implications when the challenged conduct is a platform’s decision to remove objectionable content—such as a plaintiff’s own posts—rather than a decision to leave other objectionable content in place. Extending immunity under Section 230(c)(1) to cover direct challenges to the removal of user content is an uneasy fit with the language of the provision, which says only that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A broad reading of Section 230(c)(1) that immunizes all content-removal decisions also risks “swallo[wing] the more specific immunity in (c)(2),” which applies only to content-moderation decisions that are made in “good faith.”

Not this shit again. I have repeatedly explained how Section 230(c)(2) can apply to first-party filtering decisions, which leaves room for Section 230(c)(1) to protect against liability for third-party content. There are DOZENS of cases applying Section 230(c)(1) to removal decisions, so for the court to think that it’s spotted something that all of those other courts have missed is laughable…and completely gratuitous…and ultimately inconsequential given that the court still tosses the case.

The court tries to justify its reluctance on Section 230(c)(1):

There is little reason to strain the reach of the immunity in Section 230(c)(1) when, as in this case, the immunity in Section 230(c)(2) leads to the same result.

NOOOO. There are several excellent reasons to apply both 230(c)(1) and 230(c)(2):

(1) 230(c)(1) doesn’t have a good faith prerequisite, which has mucked up 230(c)(2) jurisprudence and made 12(b)(6) dismissals much more difficult to obtain, jacking up the litigation costs for both sides and giving false hope to bogus claims. Indeed, because the court dismissed this case without prejudice, I’m sure an amended complaint will try again to manufacture bad faith sufficient to kick the case into very expensive discovery;

(2) removal and leave-up decisions are two sides of the same decision, i.e., every editorial decision about an item of third-party content is either a leave-up or removal decision, so they cannot be separated; and

(3) the statute and 25+ years of caselaw have established the principle that 230(c)(1) applies to removal decisions.

Sigh. In the end, this case ends up the same as all of the other content removal and account termination cases–dismissed.

Gaughan v. Barounis, 2025 N.Y. Misc. LEXIS 17243 (N.Y. Supreme Ct. December 18, 2025) 

The Complaint alleges that the impersonating profile and pictures of plaintiff were posted by defendants Barounis and Viera. Plaintiff’s contention that the XVideo defendants are liable for refusing or failing to remove offending material prepared by a third party, or that they may be held responsible for allegedly defamatory postings made by third parties does not state a viable basis for liability. Nowhere in the Complaint does plaintiff allege that the XVideo defendants posted or created the impersonating profile themselves, altered or edited its contents, or encouraged, required, or otherwise induced defendants Barounis and/or Viera, or any other user, to create the profile or upload unlawful content. To the contrary, plaintiff even alleges in her Complaint that Barounis and Viera allegedly making this impersonating profile goes against XVideo.com’s Terms and Agreements.

The Court also finds plaintiff’s argument that the XVideo defendants should be responsible for her alleged stolen identity, and that Section 230 does not apply in cases, unavailing.

It has also been held that “Sections 50 and 51 of the New York Civil Right Law sounds in privacy, not intellectual property, and thus does not fall within the intellectual property exceptions in Section 230.”

Equally, plaintiff’s contention that this immunity is lost because the XVideo defendants allowed the dissemination of plaintiff’s personal information and allowed discriminatory content (age, sex, sexual orientation, ethnicity, etc.) is unsuccessful.

Arana v. Molta, 2026 WL 1166348 (D. Mass. March 24, 2026)

Mr. Molta drafted the description of, and provided the photos for, the Dennis Property posted to WNAV’s website. WNAV did not review, revise, edit, or provide feedback on the Dennis Property listing that the Moltas posted to the WNAV website. WNAV is thus immune from liability for any of the statements or representations made by the Moltas in the Dennis Property listing.

Greer v. Moon, 2026 WL 1170015 (D. Utah. Feb. 11, 2026)

Mr. Greer’s only claims against Defendants are for contributory copyright infringement under federal law. Because those claims clearly “pertain[ ] to intellectual property,” they cannot be barred by section 230. Defendants’ argument concerning section 230 immunity fails.

Tufano v. Google LLC, 2026 U.S. Dist. LEXIS 100789 (N.D. Cal. May 6, 2026)

“Plaintiff premises his claims on Google allegedly “filter[ing] out all negative reviews” of Dr. Taban, including Plaintiff’s negative review, which Google allegedly removed.” The court dismisses per Section 230: “First, Google’s review service is an interactive computer service. Second, Google publishes the reviews on which Plaintiff bases his claims. Third, third parties, and not Google itself, provide the reviews published by Google.” The plaintiff said Google didn’t act in good faith, but Google relied on 230(c)(1) where good faith is irrelevant, and the plaintiff didn’t provide any evidence of bad faith.

Starship LLC v. Shein Distribution Co., 2026 WL 1455009 (C.D. Cal. March 20, 2026)

This is a fast fashion enforcement lawsuit that includes both copyright and trademark claims. The direct infringement claims largely fail because Shein operates as a marketplace for online vendors. The contributory infringement claims failed because the plaintiff wanted a staydown in response to takedown notices. The vicarious infringement claims also fail.

Shein defended against the unfair competition claim based on Section 230. The court says:

Plaintiff characterizes Shein as an information content provider because it “regularly markets and sells goods” and “is involved in almost all aspects of the marketplace’s distribution chain.” These conclusory assertions do not plausibly allege that Defendants are content providers. Plaintiff provides no factual basis to infer that Defendants materially contributed to the alleged infringement.

King v. Jilin Province Detiannuo Safety Tech. Co. Ltd., 2026 Fla. Cir. LEXIS 295 (Fla. Cir. Ct. Feb. 17, 2026)

Plaintiff does not allege that eBay participated in the creation or development of Seller’s listing or allege that eBay played some role in handling or transmitting the airbag components. Plaintiff only alleges that eBay should have removed Seller’s listing and/or issued some censure to Seller for its alleged noncompliant listing….

The only way eBay allegedly could have prevented the harm was by reviewing the third-party listing, determining whether it complied with internal policies, and removing it. That conduct, i.e., deciding whether to publish or remove third-party content, is a paradigmatic editorial function protected by the CDA.

In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2026 WL 1552391 (N.D. Cal. June 1, 2026)

The Court finds Defendants’ argument that Section 230 provides immunity from suit unavailing. Defendants point to the clause in Section 230 that states that “no cause of action may be brought” that is contrary to the statute. 47 U.S.C. § 230(e)(3). But the Tenth Circuit has held that Section 230 “provides immunity only from liability, not suit.” And the Ninth Circuit case Defendants themselves cite clearly states that Section 230 is designed “to protect websites against the evil of liability for failure to remove offensive content”; that case does not mention protection from suit. Thus, the Court concludes that Section 230 does not protect Defendants from suit.

Accardi v. CSC Holdings, LLC, 2024 N.Y. Misc. LEXIS 83186 (N.Y. Supreme Ct. November 26, 2024)

The plaintiffs claim that defendants failing to follow their terms of service makes them liable to the plaintiffs, effectively negating the immunity provided by the Communications Decency Act. After a review of the papers submitted by the defendants and the plaintiffs, the Court finds that the immunity provided by Section 230 does apply to the defendants in this action and the plaintiffs have not proffered any compelling argument or evidence to negate this immunity. As such, the defendants motion to dismiss the third cause of action pertaining to the failure to remove posts on social media is granted.

Life Mastery Network LLC v. Haygarth, 2026 WL 1622887 (D. Haw. May 22, 2026)

Paula indisputably enjoys immunity under the CDA for reposting content. Many courts have included private individuals within the scope of a “user.” Thus, (1) Paula is a “user of an interactive computer service”; (2) the subreddit link is “based on information provided by another information content provider”; and (3) Plaintiffs’ claim would treat Paula “as the publisher or speaker of that information.” As such, and as Plaintiffs have conceded at the Hearing, Paula is immune from lawsuit for what she reposted from Reddit.

But because the CDA does not immunize someone who posts original content, it makes sense that adding comments to something that is re-posted would not trigger CDA immunity. While these cited cases are not directly on point, the Court concludes that Paula’s comments regarding what she reposted are not subject to CDA immunity.

Glazer v. Meta Platforms, Inc., 1:25-cv-01849-GLR (D. Md. June 12, 2026)

The Court agrees with Meta that Section 230 bars Plaintiffs’ claims….All three elements are satisfied here: Meta is an interactive services provider; Plaintiffs’ claims treat Meta as the publisher or speaker of information under Section 230 because they “seek ‘to hold [Meta] liable for . . . deciding whether to publish, withdraw, postpone or alter content’ provided by third parties”; and the content at issue here is that of third parties, and Plaintiffs “seek[] to hold Meta liable, not for providing that content, but for allowing third parties to do so.”

Related ruling.

Sidoli v. YouTube LLC. 2025 U.S. Dist. LEXIS 210953 (N.D. Cal. Sept. 2, 2025)

Plaintiff also seeks to treat YouTube as a publisher because she alleges that YouTube wrongfully demonetized, restricted, and removed her videos. Such conduct falls within a publisher’s traditional functions….

YouTube cited authority that which stand for the proposition that Section 230 immunizes internet service providers from suit for termination of a plaintiff’s entire channel as well as the content that the plaintiff posts on that channel. Such authority is persuasive. Thus, any claim Plaintiff brings which seeks to challenge YouTube’s decision to remove Plaintiff’s YouTube channel is also barred by Section 230.

Also, “Plaintiff’s constitutional claims cannot proceed as YouTube is a private forum, not a state actor.”

See also Sidoli v. YouTube LLC, 2026 WL 1480407 (S.D.N.Y. May 27, 2026), upholding YouTube’s TOS and forum selection clause: “Defendants provide evidence, which Plaintiff does not dispute, showing that she agreed to abide by the terms of service by clicking the “Create Channel” button when she started her YouTube page on June 21, 2021.”

Kennedy v. Vickery, 2025 Me. Super. LEXIS 108 (Me. Superior Ct. Sept. 10, 2025)

RFK Jr. lost a defamation lawsuit. As for Section 230:

Defendant posted on X, without comment, a link to an article, authored by thegrio.com, titled “Anti-vaxxer Robert F. Kennedy Jr. is harming black people—and his family legacy—with his vaccine misinformation campaign.”…

Under the Communications Decency Act, internet service users are not liable for repeating, without embellishment, third party content….

Exhibit A to the Amended Complaint supports Defendant’s assertion that he posted the third-party content without embellishment. Plaintiff denies Defendant posted the link without embellishment, but cites no admissible record evidence to support the denial. Thus, under the Communications Decency Act, Defendant is not liable to Plaintiff for this post.

Awoye v. Jones, 2026 WL 1847088 (D.N.J. June 26, 2026)

In Instagram posts, Jones claims that Awoye scammed her. Awoye sued her and brought Meta along for the ride, claiming it had violated his publicity rights. There isn’t any publicity rights violation here:

The core of Plaintiff’s allegations is that Jones spread allegedly false information about Plaintiff on Instagram. Jones was not selling a product or otherwise soliciting money from her followers. As such, neither was Instagram. Jones’ posts were the “dissemination of news or information” and not made for a commercial purpose.”

Norton v. Meta Platform, Inc., 2026 WL 1963120 (N.D. Cal. July 7, 2026)

In posts on Facebook, several third parties accused Norton of criminal activity and shared intimate images of him….

“Meta is an interactive computer service provider.” Second, Norton alleges that third parties, not Meta, created the Facebook posts at issue; the third parties, not Meta, are the “information content provider[s].” Third, each of Norton’s claims seek to treat Meta as a “publisher” of third-party content. “A claim that obliges the defendant to monitor thirdparty content to avoid liability … treats the defendant as a publisher.”

Norton argued “but the algorithms.” Citing Ligon, the court says the algorithms matter only if the algorithm creates content. Citing Roommates.com, the court adds: “Norton doesn’t allege that Meta required its third-party users to create or post any of the content at issue.”

Moore v. LogSat Software LLC, 2022 WL 23074273 (S.D. Ind. Sept. 29, 2022)

John Moore has never been accused of, arrested for, or convicted of any sex-related offense; yet, his name, picture, address, and other identifying information appear on LogSat Software LLC’s app, called “Sex Offenders Search”….

Mr. Moore was convicted in Indiana of voluntary manslaughter. Thus, he was required to register on a violent crime registry in Indiana. The violent offender and sex offender registries are the same in Indiana—in other words there are not two separate lists. Mr. Moore testified that he believed that there was no national violent offender registry, just a national sex offender registry and that he is on that because the Indiana Registry is reported to the National registry….

the alleged defamatory statement at issue is that Mr. Moore’s name, picture, address, and other identifying information appear on app called “Sex Offenders Search,” because he is not a sex offender and has never been accused of, arrested for, or convicted of any sex-related crimes. Mr. Moore does not allege that he was wrongfully included in the data set that LogSat purchased from FWD, or, for that matter, that he was wrongfully included on Indiana or the National registries.

The post Large Roundup of Section 230 Rulings appeared first on Technology & Marketing Law Blog.

The plaintiff claims a copyright in a book, Drug Lords of Oakland. The defendants operate a YouTube channel, Evil Streets TV. The plaintiff says that the defendants posted 15 videos, each of which narrated a chapter from his book, plus some videos included copyrighted photos from the book. The court implies the dispute roughly followed a DMCA notice-and-takedown protocol: I believe the plaintiff submitted a 512(c)(3) notice, the uploaders counternoticed per 512(g), the plaintiff unmasked the uploaders through a 512(h) unmasking subpoena, and the plaintiff named the uploaders in the lawsuit.

The court allows the plaintiff’s direct copyright infringement claim against the YouTubers to proceed. In contrast, YouTube wins the motion to dismiss:

Direct Infrngement. “Mr. Barnes fails to allege any facts showing YouTube’s control of or active involvement in the alleged infringement on the Evil Streets TV YouTube channel.”

Contributory Infringement. Per Cox v. Sony, “Mr. Barnes does not allege that YouTube intended that its service be used for infringement, that it induced infringement, or that it tailored its service to infringement. In addition, Mr. Barnes does not allege that YouTube has no use beyond its ability to host infringing content, nor could he plausibly make such allegations.”

Vicarious Infringement. The plaintiff’s allegations about right and ability to control were too conclusory. With respect to YouTube’s direct financial interests in the alleged infringement:

there are no allegations that YouTube profited because of the Sanchez defendants’ alleged infringement. At most, Mr. Barnes alleges that YouTube generally profits by hosting and allowing people to view third-party content, including the Sanchez defendants’ videos, and generally by operating the Partner Program according to its terms. The FAC is devoid of any allegations that any individuals sought out YouTube’s services “specifically because of the availability of the infringing material.”

This was a pro se challenge to YouTube’s core business, so it was always doomed to fail. Note that YouTube won without relying on the 512(c) safe harbor.

Case Citation: Barnes v. Sanchez, 2026 WL 1912085 (N.D. Cal. July 2, 2026). The CourtListener page.

The post YouTube Exits Copyright Lawsuit Over YouTubers’ Videos–Barnes v. Sanchez appeared first on Technology & Marketing Law Blog.

* * *

The case involves a photo called the “Parker Train Photo.” It was taken in 1962, but it was first published in a book in 2000. The plaintiff claims it licenses the photo for fine art reproductions for up to $5k each.

Messiah ran a blog initially entitled “Ask Fashion Kitty.” In 2009, she wrote a post entitled “Style Suggestions for Army Wives” about what a wife should wear when greeting her husband who is returning from an 8 month military tour in Afghanistan. Messiah found the Parker Train Photo in a Google image search and used it to illustrate her post:

In 2011, Messiah transferred the blog (including the post) to a new website, LaurenMessiah.com. Here’s how the post looked post-transfer. The opinion doesn’t mention how much traffic that post got, but given its age, I imagine traffic to the post within the statute of limitations was de minimis.

The plaintiff discovered Messiah’s post/photo in 2025 and sent a C&D. The court describes what happened next:

Defendants’ assistant dismissed the cease-and-desist as spam, deleted it, and did not forward it to Messiah. Defendants’ authenticated Slack communications confirm that Messiah described the copyright claim as “some stupid like copyright infringement thing for an old blog post.”

Messiah had the blog post deleted, but the image remained online at its (presumably highly obscure) direct URL (this eventually got deleted too). In 2025, the plaintiff sued for copyright infringement and 1202 violations.

Remarkably, the opinion doesn’t mention the statute of limitations at all, even though the original post had been published no less than 14 years earlier (I’m crediting the 2011 blog transfer as a possible republication). This silence reflects that the statute of limitations doesn’t functionally exist in online copyright law any more. Each new view/download nominally constitutes a new infringement, in which case the SOL resets to the most recent visit to the post.

Nevertheless, on summary judgment, the court dismisses the copyright infringement claim on fair use grounds:

Nature of Use. The blog post is transformative because “the Parker Train Photo is part of a broader work as published in the blog and accompanies fashion guidance, rather than being part of an anthology of the Photographer’s work.” Later, the court acknowledges that “the question-and-answer commentary does not appear to substantively reference the Photo at all,” but the text’s lack of substantive engagement with the photo doesn’t seem to affect the court’s transformativeness determination. This is a defense-favorable approach. I think other courts would reject transformativeness when the photo is used purely for its illustrative effect without any commentary.

Although Messiah’s website had a commercial purpose, “There is no evidence in the record of any revenue or commercial benefit earned from the blog or, more specifically, the Parker Train Photo blog post.”

Nature of Work. “the Parker Train Photo is a fashion photograph. Generally, photos are viewed as creative expressions.”

Amount Taken. “the question-and-answer commentary renders the Parker Train Photo insubstantial in context.” This is a highly defense-favorable conclusion because 100% of the photo was used.

Market Effect. “Plaintiff’s market, by its own admission, is fine art, whereas Defendants’ blog post served a different market function.” This is also a highly defense-favorable conclusion. The plaintiff did have a licensing program for the photo.

I interpreted the opinion’s defense-favorable twists to the court’s motivation to dismiss this case. Either the court was unmoved by the low-stakes nature of the alleged infringement (photographers should stop suing bloggers for copyright infringement!), or fair use was a backdoor way for the court to accommodate the lack of a statute of limitations.

1202.

there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog, or that she did so with the intent to induce, enable, facilitate, or conceal infringement. Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.

The plaintiff pointed out that Messiah had occasionally credited other photographers in other posts. The court responds: “Plaintiff does not point to any case law to suggest that Defendants providing credit to some photos while missing credit for others indicates a pattern of deliberate conduct.”

* * *

Last month, I blogged about another case where a blogger illustrated their post with a third-party photo, and that did not qualify for fair use. I’m not sure how to reconcile the two cases, though the time delays in this case make it seem less sympathetic.

In my prior blog post, I made the following observations that mostly apply here as well:

• “Verbatim republishing of a third-party photo is inherently risky, even for bloggers.”
• “I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???”
• “why isn’t this case in the CCB, which seems like it was tailor-made for low-value cases like this?”
• “the photographer’s actual damages should be near-zero… I don’t see how the photographer is going to get any real payoff here”
• “All of this makes it a bummer for everyone–plaintiff, defendant, and society–that the parties couldn’t settle this case pre-filing.”
• “other than ignorance of copyright law, why would a blogger cut-and-paste a copyright photo from the Internet when a non-infringing substitute is just a few extra clicks away? A lawsuit like this heightens the demand for Generative AI replacements.” This advice doesn’t work here because the copying is so old that we were still at war with Afghanistan and Generative AI wasn’t widespread.

Case Citation: Sokolskyfilm, Inc. v. Lauren Messiah Inc., 2026 WL 1772787 (C.D. Cal. June 16, 2026)

The post Blogger Defeats Photographer’s Copyright Claim–Sokolskyfilm v. Messiah appeared first on Technology & Marketing Law Blog.

The court grants summary judgment to the photographer on infringement. The fair use defense fails.

Purpose of Use–Commercial. The blog post describes the problems with canine obesity, which is sorta educational. However…

The article recommends buying natural dog food, and, on another tab on the website, Defendant sells natural dog food. The canine focused article is also related to the main business purpose of the website, selling labradors. Indeed, the title of the article is “A Breeder’s Note On Canine Obesity,” calling attention to the fact that the author is herself a dog breeder. Other tabs on the website also link to products for purchase related to homeopathic dog health treatments….

Moreover, the photo itself is, at best, only tangentially related to the article’s educational purposes. The article alone provides any realized educational benefit, while the photograph is merely an attention-getting thumbnail. The article does not describe or interact with the photograph at all, nor is the photograph asserting anything of educational value

The blog post is educational content from a market vendor who has specialized expertise. Is it educational or commercial? ¿Por qué no los dos?

I don’t love how the court links commercial activity elsewhere on the website to the blog post. Yes, they are all part of the same enterprise, but I thought we had moved past this kind of link-counting 15+ years ago.

Purpose of Use–Transformative. “Defendant’s use of this photograph, as an eye-catching graphic atop an article about dog food options on a blog connected to their website which also sells dog food, is not transformative from the original use and purpose of the graphic. Defendant did not alter the work, instead reusing the photograph in its entirety.”

Nature of the Work. “The photograph at issue is a creative work, not an informational photograph. The photograph is not a factual or scientific depiction of an obese dog, rather, the photograph is a humorous depiction of two animals looking at a scale.” [Putting aside the dog body-shaming, the blog post now uses a photo of a chonky dog in place of the photo at issue in this case.]

Amount Taken. “Defendant advances no argument for why including the entire photograph was necessary….This is not a situation where the entire photograph was used “contextually,” as “explanatory” or “background” material to “aid in understanding and interpreting” a permissible purpose.”

Market Effect. The court counts this factor towards the photographer:

the extent of market harm from Defendant’s particular use of the photograph is minimal. Defendant’s particular actions did not cause Plaintiff’s market great harm, as Defendant did not offer the photograph for resale and the blog post was seemingly insulated from other platforms and located only on the breeder’s website. Additionally, Defendant’s audience was relatively small. At the time Defendant responded to Plaintiff’s interrogatories, and at the time the photograph was removed from the website, the article had forty-three (43) views….

[However,] should a large part of Plaintiff’s consumer base begin copying his work without paying for it, Plaintiff’s incentive to continue creating such works would diminish greatly

The court rejects the fair use defense and awards summary judgment on infringement to the plaintiff. The court will tackle the remedies issue in a later round.

Implications

Unsurprising outcome.

This isn’t a particularly surprising result. Verbatim republishing of a third-party photo is inherently risky, even for bloggers (see, e.g., Golden v. Grecco). It’s even riskier for commercial entities like the breeders in this case.

How is this case financially sensible for anyone?

I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???

And why isn’t this case in the CCB, which seems like it was tailor-made for low-value cases like this? Regarding the latter question, the plaintiff is represented by the Sanders Law Group, which brings a high volume of copyright cases. Maybe the law firm is managing the total number of cases they bring at the CCB…? Or perhaps they hope to get attorneys’ fees, which normally aren’t awardable in the CCB.

In any case, with 43 views at issue, the photographer’s actual damages should be near-zero. Statutory damages are possible, and the court did accept the plaintiff’s argument that some deterrence of unpermitted copying was necessary even if the photographer didn’t have a standard licensing program for the photo. But I can’t see more than a few thousand dollars of statutory damages at most–well below the litigation costs.

As a result, I don’t see how the photographer is going to get any real payoff here. Even the plaintiff’s lawyers aren’t guaranteed to get a fee shift. Without the fee shift, this case will be a big financial loser for them and the photographer.

All of this makes it a bummer for everyone–plaintiff, defendant, and society–that the parties couldn’t settle this case pre-filing. But it takes two to tango with settlements. I don’t know what conversations took place here, but I’ve seen far too many photographers make extortionate settlement demands that tip the defendants’ balance towards fighting rather than paying off. If I were the judge and I saw 43 views at issue, I would have pressed the litigants hard to stop wasting their time and money in court.

Why Generative AI should moot lawsuits like this

The photo’s concept might be a good way of depicting dogs who need to lose some weight, but that’s not protected by copyright. And implementing that vision by manufacturing this photo in physical space is resource-intensive. In addition to the other props, the photographer needs a dog and a cat, and they need to cooperate simultaneously.

In contrast, creating an image like this via Generative AI is trivially easy. I went to ChatGPT and gave it the following instructions, which are just a paraphrase of how the court opinion described in the photo:

(Note the possibility that Vedros’ photo was in ChatGPT’s training data).

For now, I would say that Vedros’ image is slightly more effective at communicating the desired message than my quick ChatGPT output. Also, the ChatGPT image is wonky. For example, it lists the dog’s weight with two decimal points and the numbers are upside-down. However, if I cared, I could have easily improved the image through a few additional prompts. And as a substitute for the original photo, the ChatGPT image works perfectly fine for a blog post illustration.

So, other than ignorance of copyright law, why would a blogger cut-and-paste a copyright photo from the Internet when a non-infringing substitute is just a few extra clicks away? A lawsuit like this heightens the demand for Generative AI replacements. I understand that photographers feel compelled to protect their interests, but I don’t think this particular lawsuit is a net win for the photographer community.

The defense did raise the AI substitutibility, but only as a reason to permit verbatim copying, which the court doesn’t appreciate:

Defendant asks the Court to rule, without any legal support, that copyright does not protect works which could have been generated with AI. Such a holding would destroy the foundations of copyright law. The Court declines to endorse or entertain this proposition.

[In a footnote, the court adds:] Defendant could have also taken its own photograph of a dog on a scale with the very dogs it breeds. Perhaps Defendant could also sculpt Michaelangelo’s David, or re-paint the Mona Lisa, depending on Defendant’s talent. Under Defendant’s logic, the only works entitled to protection would be those which no machine or human could recreate. This argument cannot stand.

Case Citation: Vedros v. The Sterling Group of the Twin Tiers, Inc., 2026 WL 1348120 (M.D. Pa. May 14, 2026).

The post Blogger’s Photo Republication Isn’t Fair Use–Vedros v. Endless Mt. Labradors appeared first on Technology & Marketing Law Blog.

Plaintiffs are often allowed to choose their own forum. But they’re not supposed to be able to choose their own judge. And yet, in the U.S. District Court for the Northern District of Illinois, some Schedule A plaintiffs appear to be doing just that.

For example, the maneuver I call “defendant pinching” generally goes like this: Plaintiffs will file Schedule A cases against some number of defendants. If they draw certain judges, they immediately amend their complaint to drop all but one of the defendants. They then refile a new case against the dropped defendants, which is randomly assigned to a new judge. Plaintiffs sometimes perform this maneuver repeatedly, amending down and refiling over and over again until they get one of a certain subset of the NDIL judges.

Some judges have called out—and even sanctioned—plaintiffs over this maneuver. When questioned, some plaintiffs have said that they using this maneuver to comply with the judges’ varying views on Schedule A joinder. Whatever the subjective intent may be, these maneuvers have the foreseeable effect of moving most of the plaintiffs’ Schedule A claims off the dockets of judges who have been skeptical (or even critical) of various parts of this litigation model and onto the dockets of the judges who have been more accommodating.

In my forthcoming article, Defendant Pinching & Pressing, I argue that this maneuver is a form of judge shopping. In doing so, I draw an analogy to roulette. Some people have analogized random judicial assignment to a game of roulette—spin the wheel, get a judge. But sometimes people cheat at roulette. They might increase their bet after they know where the ball will land (“bet pressing”) or reduce it (“bet pinching”). In either case, they’re changing the stakes of the game after the final result is known. Similarly, when Schedule A plaintiffs drop (or add) defendants, they’re changing the expected “payout” for the case. Plaintiffs shouldn’t be able to spin the judicial-assignment wheel over and over until they “win.” They don’t get to do it in other cases; I haven’t heard any compelling reason why they should get to do it in Schedule A cases.

This paper is very much still a work in progress. And it is, at least in one respect, already out of date. Since I finished the posted draft, it appears that at least some plaintiffs have switched to a new standard procedure: Upon drawing certain judges, they amend down to one defendant, wait a bit, and then voluntarily dismiss the remaining defendant. Due to all of the sealing, it’s not entirely clear whether or how the claims are being refiled. But given past practice, it would be surprising if they weren’t being refiled somewhere, somehow. If anyone out there has insights into this new maneuver—or thoughts on Schedule A judge-shopping more generally—please reach out. I’d love to hear your thoughts.

The post Judge Shopping & Schedule A (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

Embed/in bed

The central question in the case is whether embedding is infringing. We don’t get an answer to that question. XXL chose to defend the case on other grounds at the district court, so it’s not at issue in the appeal. As a result, the panel assumes “for the purposes of this appeal, that embedding constitutes actionable use.”

[Note: normally my blog coverage would include a screengrab of one of the videos in question so you could see the content at issue in this dispute. Given this ruling, I worry I’ll join the defendant list if I do so. More chilling effects from legal uncertainty.]

Fair Use of Jordan Video

Nature of Use–Transformativeness

The court questions the transformativeness of XXL’s embedding:

Townsquare republished the Jordan Video in a news article describing a controversy surrounding the video, Townsquare’s reporting at times appears more focused on the mere existence and presentation of the video itself. No place is that more evident than in the article’s headline. Instead of referring to any of the article’s commentary, the headline presents the video as the article’s primary draw: “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video from 2015 —Watch.” The article then opens by explaining that the DailyLoud had posted the video on X just one day prior. That is the extent of the article’s discussion of the video’s online circulation. It moves on to describe the incident depicted in the video, but that portion of the article simply describes what viewers of the video can see for themselves….

there is a difference between gesturing towards a transformative message and actually communicating that message. Here, Townsquare’s commentary was limited to a few sentences explaining that a third party had republished the video and opined that an individual who does not appear in it was Charleston White. Notably, the article does not identify anything in the video that would corroborate that speculation for the viewer; instead it relies on the unexplained say-so of the DailyLoud’s post. It is therefore debatable whether the article meaningfully communicated any new commentary about the video (which could justify its copying) or instead merely summarized commentary about the fight depicted and relied on the video solely as an illustrative aid (in which case the copying served little transformative function)

Despite these musings, the court doesn’t definitively resolve the transformativeness question, saying the other factors negate fair use.

Nature of Use–Commerciality

“Townsquare is a for-profit entity, a fact that weighs against fair use….Townsquare ran advertising alongside its embedded depiction of the Jordan Video, but classic legacy news media such as newspapers, news magazines, and commercial television stations did, and do, the same.”

The court decides the nature of use factor is at best neutral.

Nature of Work

“The Jordan Video was largely factual, and, as Richardson concedes, did not involve meaningful creative choices. That Richardson was fortunate to be in the right place at the right time to record Jordan’s unexpected intervention does not make the work creative.” The court says this factor weighs in favor of fair use but “plays a minimal role in the fair-use assessment.”

Amount Taken

XXL republished the entire video, which it said was required by the embedding. The panel questions the necessity:

Townsquare could have, for example, republished the text of the post along with a portion of the video. Or it could have taken a screenshot of the post with a still of the video (as Townsquare did for the article’s headline). Or it could have simply reported on the controversy and included a hyperlink to the post, forgoing any reproduction of the video. While embedding the post may have been more expedient for Townsquare, nothing compels a conclusion (and certainly not at this stage) that embedding the post and, with it, the entire video was reasonable in relation to Townsquare’s limited news reporting.

I guess the panel is really that willing to second-guess XXL’s editorial processes? And the court says XXL could have taken a video screengrab instead of embedding the whole video, but later in the opinion it doesn’t resolve whether that screengrab would itself be infringing, so…is that a non-infringing option or not?

XXL also argued that viewers needed to see the entire video to evaluate its hypothesis about who’s in the video. The court responds that the person at issue never appears in the video (only off-camera).

XXL also argued that embedding allowed its audience to see the original comments. The court responds that XXL could have just done summary reporting of that information.

Instead, the court says “Perhaps discovery may offer further editorial or technological justification for Townsquare’s decision to use the entirety of the video.” Sounds expensive.

Market Effect

The court says this is the “most important” fair use factor.

The court says Richardson’s complaint didn’t make clear what the market for the video is. The court rewards this pleading omission: “Townsquare cannot decisively demonstrate the absence of an effect of its use of the Jordan Video on the market for the original video based on the allegations in a complaint that say little or nothing about the nature of that market.” It’s true that the defense has the burden to establish fair use, but the panel also rewards plaintiff drafting gamesmanship.

Without any guidance from the complaint, the panel then veers into speculation-land:

It is entirely unclear that a viewer of Townsquare’s story would gain anything from watching a version of the Jordan Video unencumbered by Townsquare’s reporting, advertising, and the X post text and border. And if viewers are unlikely to gain anything, they would have little reason to seek out the Jordan Video from Richardson. And without viewers, Richardson would experience market harm either by lost advertising revenue (if, like Townsquare, he had published the video online) or lost rental or purchase revenue (if he provided the video directly to consumers).

I can’t tell if the initial X poster (DailyLoud) was authorized or not. If it was an authorized post to X, then odds are that the X posting wouldn’t generate any of these revenues, in which case the court’s discussion is both hypothetical and wrong.

The court summarizes its view on the market effect at early litigation stages: “because Townsquare has not shown that its use of the Jordan Video is not a market substitute for the Jordan Video itself, the fourth statutory factor weighs against fair use.”

Summary of Fair Use

To whatever extent Townsquare’s use of the Jordan Video is transformative (if at all), that fact is outweighed by Townsquare’s decision to republish the entire video. That choice rendered its use of the video a plausible market substitute for the video itself. Discovery may further explicate the relevant market factors, and thus demonstrate that Townsquare’s use of the full video was reasonably justified or that customers interested in watching the video would still seek out the original to avoid the article’s text and advertising

As this passage indicates, XXL could still win fair use–it will just take more time and money to find out. But notice how the court had to twist the factors to make them (other than the amount taken) actually weigh against fair use. Perhaps reflecting the pleading burdens, the court was extraordinarily charitable to the plaintiff–almost certainly more than the plaintiff deserved. This is how bad cases survive in court longer than they should.

Screenshots as Infringement

The lower court said the screengrabs were de minimis copying. The court says that doctrine doesn’t apply because “By taking screenshots, Townsquare made literal copies of video “frames” and incorporated those copies into its articles.” The court sees the de minimis exception quite narrowly: “we have typically found de minimis use where the defendant’s inclusion of the copyrighted work was incidental or unidentifiable in the secondary work.” In contrast, “Townsquare prominently displayed the screenshots, which are clearly recognizable as taken from the embedded videos (as Townsquare intended them to be), to communicate the subject matter of its articles.”

The court doesn’t address fair use for the screengrabs because the lower court didn’t rule on that topic. Nevertheless, the court cautions the lower court that “fair-use analysis is generally ill-suited to the pleading stage.”

It’s truly mind-blowing to believe that it could be infringing to display a screengrab from a video when discussing the video. I expect courts will bless the republication of screengrabs eventually, but not using the de minimis doctrine.

Permission to Embed the Melle Mel Video

Art of Dialogue uploaded the Melle Mel video to YouTube. YouTube’s upload TOS expressly authorizes third-party embedding, which seemingly extends permission to XXL. Richardson said the court couldn’t consider these facts, but the court responds that Richardson:

does not, for example, assert that the Melle Mel Video was uploaded onto YouTube without his consent or that the version of the Terms that Townsquare attached was in any way inaccurate. Had he done so, the resulting factual dispute would have rendered the Terms premature for consideration at the pleading stage. But his failure to do so confirms that he sought to rely on “clever drafting” to render his complaint “invulnerable to Rule 12[c].”

A reminder that the court just accepted similar “clever” drafting in the fair use considerations…so I guess pleading cleverness only works sometimes? Also, the court saying that all Richardson had to do was contest the initial upload authorization or the TOS terms (which they would only do in good faith per Rule 11–wink wink) and the court would survive the case to summary judgment provides plaintiffs with yet more leverage.

To the extent that XXL didn’t comply with any conditions from YouTube’s TOS embedding license, the court says that’s YouTube’s issue to enforce, not Richardson’s.

Implications

I could recapitulate this decision:

• The Second Circuit doesn’t like to decide fair use on motions to dismiss. (XXL requested judgment on the pleadings, but the court sidestepped the difference in stages by collapsing the two into a single “pleading stage”).
• The de minimis defense is a niche exception.
• Social media TOSes authorize third-party embedding. If the uploader had the permission to upload, then downstream embedders aren’t liable.

Stated this way, perhaps this opinion doesn’t look so bad.

However, the court’s reticence to resolve fair use early is problematic in light of Richard Liebowitz’s recent litigation rampage in Second Circuit-governed courts, where courts had to resolve fair use early to clear out his trash lawsuits. Rulings like this help copyright trolls and other copyright owners weaponize the litigation process and increase defense costs. Even if the lower court rules for Townsquare/XXL on remand, significant damage is done simply by letting unmeritorious cases get that far.

All of these litigation efforts could be avoided if the Second Circuit followed the Ninth Circuit’s approach to embedding, a question that wasn’t before this panel. In the 9th Circuit, embedding isn’t copyright infringement, so defendants don’t need to justify fair use or try to make the de minimis doctrine something more than it is. We’ve been waiting a long time for the Second Circuit to clarify its stance on embedding. Until then, we get rulings like this and expensive litigation cycles.

Similarly, we need stronger judicial pronouncements that screengrabs aren’t infringing. The entire meme and GIF ecosystem is riding on that issue.

Case Citation: Richardson v. Townsquare Media, Inc., 2026 WL 1097502 (2d Cir. April 23, 2026)

The post We Still Don’t Know the Second Circuit’s Position on Embedding and Copyright Infringement–Richardson v. Townsquare appeared first on Technology & Marketing Law Blog.

On March 25, the U.S. Supreme Court unanimously held that Cox Communications, an internet access provider, is not liable for file-sharing infringements committed by its users.  Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171  (U.S. March 25, 2026).  In so holding, the Court rejected a $1 billion jury verdict in favor of Sony and other copyright owners (which the Fourth Circuit had already held should be remanded for retrial, but only on damages).  The majority opinion (by Justice Thomas, for seven justices) also seemingly rejected the “knowledge plus material contribution” standard for contributory infringement that has been used by the Courts of Appeals in case law for over 50 years.  Two concurring justices (Sotomayor, joined by Jackson) would have preserved that standard, but they would have interpreted it more narrowly than the Fourth Circuit had done.

The decision is a decisive victory for Cox and other internet access providers, and it will be welcomed by any defendant facing claims of contributory infringement.  (The Court did not purport to decide any issues regarding vicarious liability, but the opinion may be helpful to those defendants as well.)  The decision is also a stinging loss for major copyright owners, who have been trying for years to get courts to hold internet service providers and other intermediaries liable for copyright infringements committed by their users.  The opinion makes it significantly harder to do that.  Copyright owners will likely seek legislative relief, but it seems unlikely that Congress will be able to agree on legislation that will satisfy the major interest groups.  I also predict that defendants facing secondary liability claims in trademark cases will try to use the opinion to narrow contributory infringement in trademark law as well.

If you are not already familiar with secondary liability in copyright law, some background is needed to understand the full implications.  If you are already familiar with the existing law and the facts, you can skip straight to my analysis of the majority opinion.

Secondary Liability Before the 1976 Act

The first Supreme Court case to find contributory infringement was Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911).  The Second Circuit explained the facts:

The late Gen. Lew Wallace wrote a story called ‘Ben Hur,’ the copyright of which belongs to the complainants Harper & Bros. The complainants Klaw & Erlanger caused the story to be dramatized, and Harper & Bros. duly copyrighted the dramatization and thereupon granted Klaw & Erlanger the sole right of producing the same upon the stage. The defendant the Kalem Company also employed a writer to read the story, without having any knowledge of the copyrighted drama, and to write a description of certain portions of it. It then produced persons and animals, with their accouterments, to perform the actions and motions so described … from which a positive film suitable for exhibition purposes was reproduced.

Harper & Bros. v. Kalem Co., 161 F. 61, 62 (2d Cir. 1909).  Under the 1870 Act (as amended), the copyright owner of a book had “the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors or their assigns shall have [the] exclusive right to dramatize or translate any of their works for which copyright shall have been obtained.”  The Second Circuit held that the 15-minute film did not itself infringe the publisher’s rights: “as pictures only represent the artist’s idea of what the author has expressed in words, they do not infringe a copyrighted book or drama, and should not as a photograph be enjoined.”  161 F. at 63.  When the film was exhibited in theaters, however, that violated the exclusive rights to dramatize and to publicly perform the novel, and the producers were liable for those actions:

It is next objected that the defendant cannot be held as a contributory infringer, because its films are capable of innocent use; e.g., exhibitions for private amusement. This fact only compels the complainants to prove that the defendant does promote a guilty use of them. Inasmuch as it advertises the films as capable of producing a moving picture spectacle of Ben Hur, and sends its advertisements to proprietors of theatoriums with the expectation and hope that they will use them for public exhibitions, charging an entrance fee, and inasmuch as many of these proprietors have so used them, the defendant is clearly guilty of contributory infringement.

161 F. at 64.  On appeal, the Supreme Court assumed without deciding that the first holding was correct, and it then affirmed the second holding:

It is said that pictures of scenes in a novel may be made and exhibited without infringing the copyright, and that they may be copyrighted themselves. Indeed, it was conceded by the circuit court of appeals that these films could be copyrighted, and, we may assume, could be exhibited as photographs. Whether this concession is correct or not, in view of the fact that they are photographs of an unlawful dramatization of the novel, we need not decide. We will assume that it is. But it does not follow that the use of them in motion does not infringe the author’s rights. The most innocent objects … may be used for unlawful purposes. And if, as we have tried to show, moving pictures may be used for dramatizing a novel, when the photographs are used in that way, they are used to infringe a right which the statute reserves.

… [I]t is said that the defendant did not produce the [dramatic] representations, but merely sold the films to jobbers, and on that ground ought not to be held. In some cases where an ordinary article of commerce is sold nice questions may arise as to the point at which the seller becomes an accomplice in a subsequent illegal use by the buyer. It has been held that mere indifferent supposition or knowledge on the part of the seller that the buyer of spirituous liquor [is] contemplating such unlawful use is not enough to connect him with the possible unlawful consequences….  But no such niceties are involved here. The defendant not only expected but invoked by advertisement the use of its films for dramatic reproduction of the story. That was the most conspicuous purpose for which they could be used, and the one for which especially they were made. If the defendant did not contribute to the infringement, it is impossible to do so except by taking part in the final act. It is liable on principles recognized in every part of the law.

222 U.S. at 62-63.

Six decades later, the Second Circuit set forth the standard formulation of secondary liability used in the Courts of Appeals (until now), in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971).  The Gershwin court held there are two types of secondary liability: “vicarious” liability (based on the relationship between the direct infringer and the person to be held liable) and “contributory” infringement:

Although the Act does not specifically delineate what kind or degree of participation in an infringement is actionable, it has long been held that one may be liable for copyright infringement even though he has not himself performed the protected composition. For example, a person who has promoted or induced the infringing acts of the performer has been held jointly and severally liable as a “vicarious” infringer, even though he has no actual knowledge that copyright monopoly is being impaired. Although vicarious liability was initially predicated upon the agency doctrine of respondeat superior, this court recently held that even in the absence of an employer-employee relationship one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities. Shapiro, Bernstein & Co., Inc. v. H. L. Green Co., [316 F.2d 304, 307 (2d Cir. 1963)].

Similarly, one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a “contributory” infringer….

443 F.2d at 1161-62.

Meanwhile, in Patent Law

In patent law, two sub-types of “contributory” infringement were separated and codified in the 1952 Patent Act, at 35 U.S.C. § 271:

(b) Whoever actively induces infringement of a patent shall be liable as an infringer.

(c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

In Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), the Supreme Court reaffirmed “that induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement.” 563 U.S. at 766. Thus, “deliberate indifference to a known risk that a patent exists is not the appropriate standard under § 271(b).” Id.  Nonetheless, the Court affirmed the holding that Pentalpha was liable for active inducement, holding that “willful blindness” can substitute for actual knowledge of a patent. Id. at 766, 768.  For willful blindness, “[t]he defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.” 563 U.S. at 769.  In other words, “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing.” Id.  Neither recklessness (“one who merely knows of a substantial and unjustified risk of such wrongdoing”) nor negligence (“one who should have known of a similar risk but, in fact, did not”) is sufficient to show inducement. Id. at 770.

Secondary Liability After 1976 and Before Cox

The 1976 Copyright Act did not expressly address secondary liability.  Section 106 of the Act grants the copyright owner “the exclusive rights to do and to authorize” five activities (reproduction, prepare derivative works, public distribution, public performance, and public display); and the legislative history stated “[u]se of the phrase ‘to authorize’ is intended to avoid any question as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.”  H.R. Rep. No. 94-1476, at 61 (1976).

Another paragraph in the legislative history addressed vicarious liability:

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment … from liability for copyright infringement, committed by an independent contractor.…  A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

H.R. Rep. 94-1476, at 159-60 (1976).  Apparently, Congress did not anticipate the rise of so-called textualism as a dominant (but inconsistently applied) principle of statutory interpretation, with the concomitant reluctance of textualist judges to read and rely on legislative history, or to interpret a statute in light of existing common-law principles.

The first major case that arose under the 1976 Act was Sony Corp. of America v. Universal City Studios, Inc., 484 U.S. 417 (1984). (The case actually was filed before the effective date of the new Act; but the trial included two instances of infringement that occurred after the effective date, January 1, 1978; and both the Ninth Circuit and the Supreme Court primarily cited and relied on the 1976 Act.)

In Sony, Universal and Disney sued Sony for making and distributing the Sony Betamax, the first VCR for home use.  They argued that consumers used the VCR to make reproductions of its over-the-air broadcast programs without its consent (direct infringement), and that Sony should be held liable for contributory infringement for providing the means to make those infringements. The District Court refused to grant a preliminary injunction and held after a bench trial that Sony was not liable; but the Ninth Circuit reversed, holding that Sony was liable; and the Supreme Court granted certiorari.

At the time of trial, there were only about 800,000 VCRs in the United States; but by the time the case reached the Supreme Court (it was argued in January 1983), about 10 million VCRs had been sold.  As Prof. Jessica Litman has previously reported, the Justices initially voted 5-4 to affirm, and Justice Blackmun was assigned the majority opinion, while Justice Stevens undertook to pen the dissent.  Justice O’Connor, however, had second thoughts and could not agree with Justice Blackmun’s opinion.  The Court could not reach a consensus by June, so the case was reargued in October 1983.  When the opinion was issued in January 1984, Justice O’Connor had switched her vote, giving Justice Stevens a 5-4 majority.

Justice Stevens’s majority opinion borrowed the “staple article of commerce” doctrine from patent law (codified in 35 U.S.C. § 271(b)), saying:

We recognize there are substantial differences between the patent and copyright laws. But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective — not merely symbolic — protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses….

The question is thus whether the Betamax is capable of commercially significant noninfringing uses….

464 U.S. at 442.  Note that the majority opinion worded its standard in three different ways in three consecutive sentences, and that none of those three sentences exactly matches the wording of the patent statute (“suitable for substantial non-infringing use”).

The majority then held there were two “substantial noninfringing uses” for the Betamax VCR: authorized time-shifting, and unauthorized time-shifting. First, Justice Stevens noted that although Universal and Disney objected to consumers recording broadcast television on their VCRs, other copyright holders consented to such use. Representatives of the four major sports leagues (NFL, NBA, MLB, and NHL) all testified that they had no objection to consumers recording their broadcasts and watching them at a later time.  464 U.S. at 444.  What may have sealed the case was the testimony of children’s television host Mr. Rogers, who testified he thought it was great that parents could record his show and watch it with their children together when they were all at home. Id. at 445 & n.27. Second, Justice Stevens also held that even unauthorized time-shifting was a fair use under Section 107 of the newly-enacted Copyright Act of 1976. Id. at 447-55.

One decade later, internet service providers faced a real possibility of being held liable for infringements committed by their users.  They succeeded in getting Congress to enact the Online Copyright Infringement Liability Limitation Act at Title II of the Digital Millennium Copyright Act (or DMCA).  Codified at 17 U.S.C. § 512, the Act established four “safe harbors” for internet service providers engaging in certain types of activities: (a) “transitory digital network communications” (internet access and “backbone”); (b) “system caching” (temporary storage of material to facilitate access); (c) “hosting” of information posted by users; and (d) “information location tools” (indexing and linking).

To qualify for the (b), (c), and (d) safe harbors, a service provider must comply with the “notice-and-takedown” provisions in section 512(c).  (Notably, internet access providers like Cox are not required to comply with the notice-and-takedown provisions, because there is nothing for them to “take down”: by the time Cox is notified of infringing activity, it has already occurred; whereas the other three categories of service provider can take steps to prevent further infringement.)  And to qualify for any of the safe harbors, a service provider must have “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.”  [17 U.S.C. § 512(i)(1)(A).]  However, the safe harbors do not require a service provider to “monitor[] its service or affirmatively seek[] facts indicating infringing activity” [17 U.S.C. § 512(m)(1)]; and “[t]he failure … to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing.”  [17 U.S.C. § 512(l).]

The section 512(c) and (d) safe harbors were also conditioned on the absence of facts that might otherwise make the service provider liable for infringement.  For those safe harbors, the service provider must show it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement …, responds expeditiously to remove, or disable access to, the material that is claimed to be infringing….

17 U.S.C. § 512(c)(1), (d)(1).  Courts have interpreted these conditions narrowly.  Both “actual knowledge” and so-called “red flag” knowledge have to be knowledge of specific infringing activity to trigger the duty “expeditiously to remove,” because otherwise, the service provider would have to “affirmatively seek[] facts indicating infringing activity.” And the “right and ability to control such activity” has to mean “something more” than the mere ability “to remove or disable access to” the infringing material, because otherwise, satisfaction of condition (A)(iii) would render it impossible to satisfy condition (B).  See Viacom Int’l, Inc. v. YouTube, Inc., 679 F.3d 19, 30-32, 37-38 (2d Cir. 2012); UMG Recordings, Inc. v. Shelter Capital Partners, 718 F.3d 1006, 1020-23, 1029-30 (9th Cir. 2013).

Between the enactment of the DMCA and the cases interpreting it, courts had to confront secondary liability in a series of cases involving peer-to-peer file-sharing.  In A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), for example, Napster provided software that uploaded the file names (but not the files themselves) of all MP3 files on a user’s system to a central index on the Napster website.  A user could search the file-name index; and when the user clicked on a file name, the Napster software would initial a transfer of the file itself from one user to another (“peer to peer”).  The infringing files themselves were never uploaded to or stored on the Napster servers.  The Ninth Circuit discussed whether and how Napster should be held liable for the infringing conduct of its users:

[C]ontributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works….

Conversely, Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files.

239 F.3d at 1027. The Ninth Circuit affirmed that copyright owners were likely to succeed on both theories, although it modified the preliminary injunction.  Unable to comply with the modified injunction, Napster was forced to shut down.

In Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc., 545 U.S. 913 (2005), the U.S. Supreme Court confronted two successors to Napster, Grokster and StreamCast (Morpheus), both of whom tried to avoid Napster’s fate by providing peer-to-peer file-sharing software that did not rely on a centralized index.  (Grokster’s software stored the index on various “supernodes,” while Morpheus passed a user’s search request from computer-to-computer and sent matching file names to the requesting user.)  It was thus impossible to enjoin the operation of the software, because once it was distributed, Grokster and StreamCast had no control over how it was used.  The Ninth Circuit held that distribution of the software was lawful under Sony because the software was capable of substantial non-infringing uses, even though it was being used primarily to infringe.  The Supreme Court reversed; and in doing so, it re-interpreted Sony as a case about intent:

Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement. The Ninth Circuit has read Sony’s limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties’ infringing use of it[,] … even when an actual purpose to cause infringing use is shown by evidence independent of design and distribution of the product….

Sony’s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law….

545 U.S. at 933-35.  The Court added that “[t]he classic case of direct evidence of unlawful purpose occurs when one induces commission of infringement by another, or entices or persuades another to infringe, as by advertising.” Id. at 935 (cleaned up).  Accordingly,

For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

545 U.S. at 936-37. The Court cautioned, however, that “mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability.” Id. at 937 (emphasis added).  Instead, “[t]he inducement rule … premises liability on purposeful, culpable expression and conduct.” Id.

The Court found such “purposeful, culpable expression and conduct” in three types of evidence. “First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users.” 545 U.S. at 939. “Second, … neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software.” Id.  Third, the software streamed ads to active users, so “the more the software is used, the more ads are sent out and the greater the advertising revenue becomes.” Id. at 940.  The Court cautioned that the second type of evidence would not be sufficient by itself, id. at 939 n.12; but combined with the other types of evidence, “the unlawful objective is unmistakable.” Id. at 940.

Over time, the substantive law of contributory infringement started to converge with the statutory standard for the § 512(c) safe harbor.  For example, in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), the Ninth Circuit held that

[A] computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet [it] continues to provide access to infringing works.

508 F.3d at 1172 (internal quotes and citations omitted; emphasis in original). Accord, UMG Recordings, Inc. v. Grande Comms. Network, LLC, 118 F.4th 697, 715-16 (5th Cir. 2024).  Note that after Cox, the Supreme Court granted certiorari in UMG v. Grande, vacated the decision, and remanded for reconsideration in light of Cox v. Sony. UMG v. Grande, No. 24-967 (U.S. April 6, 2026).

The Cox Facts and Procedural Posture

In 2013-2014, Sony and other record labels sent over 163,000 notices of claimed infringement to Cox, an internet access provider.  The notices claimed that infringing files were being made available online by users of the BitTorrent protocol, and Sony’s agent MarkMonitor identified the allegedly infringing users (or accounts) by their Internet Protocol (IP) addresses.  Although internet access providers like Cox are not subject to the DMCA’s notice-and-takedown provisions, Sony argued that Cox had a common-law obligation to do something about infringing users.

Cox responded with a 13-strike policy, starting with polite requests to subscribers that they should not infringe and ultimately escalating to terminating subscribers’ accounts.  During the two-year period, Cox terminated only 32 subscribers for alleged repeat infringement; it also terminated hundreds of thousands of subscribers for nonpayment.

As a result, in a previous decision, the Fourth Circuit held that Cox was ineligible for the section 512 safe harbor, because it had not “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.” 17 U.S.C. § 512(i)(1)(A); see BMG Rights Mgmt. (US) LLC v. Cox Comms., Inc., 881 F.3d 293 (4th Cir. 2018).

After a 12-day jury trial, the jury found against Cox on both contributory infringement and vicarious liability, and it further found that the infringement was willful.  The jury awarded slightly less than $100,000 in statutory damages for each of the 10,017 works at issue, for a total of $1 billion in statutory damages.  On post-trial motions, the district court largely upheld the verdict; but it agreed there was overlap in the number of works (only one award of statutory damages may be made for a sound recording of a musical work, even though there are two copyrights), so the total verdict had to be adjusted.  Sony Music Entertainment vs. Cox Comms., Inc., 464 F. Supp. 3d 795 (E.D. Va. 2020).

On appeal, “Cox argue[d] that it does not profit directly from its subscribers’ infringement because ‘[a]ll subscribers pay Cox a flat monthly fee for their internet access package no matter what they do online.’ Whether a subscriber uses her internet access for lawful or unlawful purposes, Cox receives the same monthly fee, and a subscriber’s decision to download or distribute a copyrighted song without permission does not benefit Cox.”  Sony Music Entertainment vs. Cox Comms., Inc., 93 F.4th 222, 230 (4th Cir. 2024).

The Fourth Circuit agreed: “The continued payment of monthly fees for internet service, even by repeat infringers, was not a financial benefit flowing directly from the copyright infringement itself. As Cox points out, subscribers paid a flat monthly fee for their internet access no matter what they did online. Indeed, Cox would receive the same monthly fees even if all of its subscribers stopped infringing.” Id. at 232 (emphasis in original).  Evidence that 13% of Cox’s network traffic was attributable to peer-to-peer file-sharing, and that users who were the subject of 20 or more notices of claimed infringement paid higher monthly fees for increased data usage, did not “raise[] a reasonable inference that any Cox subscriber paid more for faster internet in order to engage in copyright infringement. As Sony’s expert testified, other data intensive activities include legally streaming movies, television shows, and music, as well as playing video games. Subscribers may have purchased high speed internet for lawful streaming and downloads or because their households had many internet users…. Sony has not identified any evidence that customers were attracted to Cox’s internet service or paid higher monthly fees because of the opportunity to infringe Plaintiffs’ copyrights.”  Id. at 233.

The Fourth Circuit, however, did uphold the verdict of contributory infringement.  It first upheld the district court’s ruling on summary judgment that Sony had established the knowledge element as a matter of law, because “Cox did not argue to the district court, as it does now on appeal, that notices of past infringement failed to establish its knowledge that the same subscriber was substantially certain to infringe again.” Id. at 234.  On the material contribution prong, Cox argued “that it cannot be liable for materially contributing to copyright infringement because the internet service it provides is capable of substantial lawful use and not designed to promote infringement.” Id. at 236.  The Fourth Circuit agreed that “what matters is not simply whether the product has some or even many non-infringing uses, but whether the product is distributed with the intent to cause copyright infringement.” Id. (emphasis in original, citing Grokster). And it further agreed that “‘mere failure to take affirmative steps to prevent infringement’ does not establish contributory liability ‘in the absence of other evidence of intent.’” Id. (quoting Grokster).  Nonetheless, it held there was sufficient evidence of intent:

The evidence at trial, viewed in the light most favorable to Sony, showed more than mere failure to prevent infringement. The jury saw evidence that Cox knew of specific instances of repeat copyright infringement occurring on its network, that Cox traced those instances to specific users, and that Cox chose to continue providing monthly internet access to those users despite believing the online infringement would continue because it wanted to avoid losing revenue.

Id.  Finally, “[h]aving reversed on one theory of liability and affirmed on the other,” the Fourth Circuit held that the case had to be remanded for a new trial on damages.

Both parties filed petitions for certiorari.  The Supreme Court denied Sony’s petition, which sought review on the question: “Whether the profit requirement of vicarious copyright infringement permits liability where the defendant expects commercial gain from the enterprise in which infringement occurs …, or whether the profit requirement of vicarious copyright infringement permits liability only where the defendant expects commercial gain from the act of infringement itself.” Petition for a Writ of Certiorari , Sony Music Entertainment v. Cox Comms., Inc., No. 24-181 (U.S. filed Aug. 16, 2024), cert. denied, 145 S.Ct. 2844 (U.S. June 30, 2025). But on the recommendation of the Solicitor General, the Supreme Court granted Cox’s petition, which presented two questions:

Did the Fourth Circuit err in holding that a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?

Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c)?

Petition for a Writ of Certiorari, Cox Comms., Inc. v. Sony Music Entertainment, No. 24-171 (U.S. filed Aug. 15, 2024), cert. granted, 145 S.Ct. 2841 (U.S. June 30, 2025).  The second question received little attention at oral argument, and the Court did not directly address it in the written opinion. Nonetheless, given the Court’s holding on the first question, one can infer that “mere knowledge of another’s direct infringement” will not suffice to find that a contributory infringer acted “willfully” for purposes of statutory damages.

The Majority Opinion

Justice Thomas’ majority opinion (for seven justices) is brief: just ten pages, four of which are devoted to the facts and procedural posture.  At the end of a short introduction, he states the Court’s conclusion: “a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.” [Slip op. at 1]  That brief conclusion breaks little new ground; it is essentially a restatement of the holding of the Sony Betamax case, with “service” substituted for “product.” It is the application of that standard to these facts that is controversial, especially since the Fourth Circuit had specifically held there was sufficient evidence that Cox intended to cause infringement.

On the second page, the majority restates some basic principles from Grokster:

The provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement. To establish that a provider intended its service to be used for infringement, a copyright owner must show one of two things. First, it can show that a party affirmatively “induc[ed]” the infringement. Ibid. Or, second, it can show that the party sold a service tailored to infringement. Id., at 942 (Ginsburg, J., concurring). Patent law, with which copyright law has a “historic kinship,” … tracks these two requirements. See 35 U. S. C. §§271(b), (c). [Slip op. at 2]

Previous opinions (Grokster and Sony) had established there was liability if either of those two things was shown.  What is new is that these are apparently the only two means that will render a service provider contributorily liable.  The majority is so committed to textualism that it restricts contributory liability in copyright law to the two avenues (inducement and “tailoring”) that are codified in patent law, a different statute.

(It is worth noting that Justice Ginsburg’s concurring opinion in Grokster nowhere mentions the word “tailored.”  Here is what she said on page 942: “Liability under our juris­prudence may be predicated on actively encouraging (or inducing) infringement through specific acts … or on distributing a product [that] distributees use to infringe copyrights, if the product is not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” Her opinion does not suggest that those are the only two ways of proving contributory liability. And even that statement was only for three justices (Ginsburg, Rehnquist, and Kennedy), not for the Court.)

After explaining the facts and procedural posture, the majority opinion returned to Justice Thomas’s “textualism” theme:

The Copyright Act does not expressly render anyone liable for infringement committed by another.” Sony, 464 U. S., at 434. Ordinarily, when Congress intends to impose secondary liability, it does so expressly….  Although our precedents have recognized specific forms of secondary copyright liability that predated the Copyright Act, we are loath to expand such liability beyond those precedents. [Slip op. at 6-7]

Why would the Court be “loath to expand such liability,” especially when the Court said in Grokster that Sony “was never meant to foreclose rules of fault-based liability derived from the common law”? 545 U.S. at 934-35.  Again, the only answer I can find is textualism: the Court thinks Congress should write the rules for secondary liability (even though Congress in 1976 believed that courts should continue the common-law tradition in many respects).  In the Court’s view, Congress did what it was supposed to do in codifying secondary liability in patent law; so the majority does not want to go beyond those boundaries in the related field of copyright law, notwithstanding the “rules of fault-based liability derived from the common law.”

That the majority is limiting contributory infringement to those two means is made abundantly clear in the next paragraph: “The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement. The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.” [Slip op. at 7, emphasis added]  The majority then discusses the two relevant examples from its own case law [Grokster and Sony]:

A provider induces infringement if it actively encourages infringement through specific acts. For example, in Grokster, … [t]he companies promoted and marketed their software as a tool to infringe copyrights … [and] [t]he “principal object” of their business models “was use of their software to download copyrighted works.” …

A service is tailored to infringement if it is “not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” …

These two forms of contributory infringement track patent law…. [Slip op. at 7-8]

There is no analysis here: no discussion of Congressional intent, legislative history, or public policy.  There is no discussion of the two decades of lower court cases that had addressed the issue.  No discussion of the “(specific) knowledge plus material contribution” standard.  The majority opinion is nothing more than assertion: here are two types of contributory infringement that the Court has previously recognized, and we are not going to go beyond them.

In the next paragraph, the Court rejects a “straw man” argument, saying:

This Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe. In Kalem Co., the Court explained that “mere indifferent supposition or knowledge on the part of the seller” that the buyer will use the product unlawfully is “not enough” to make the seller liable for the buyer’s conduct. 222 U. S., at 62…. And, in Grokster, the Court confirmed that “a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement.” 545 U.S. at 939, n.12. [Slip op. at 8-9]

Here, the majority fails to grapple with the difference between a product and a service.  In Sony, the manufacturer sold VCRs to customers and had no further involvement with them.  It had constructive knowledge that some of them would use the product to infringe, but it had no way of knowing which ones.  But a service provider has an ongoing relationship with its users.  The service provider may lack specific knowledge at the outset; the question is whether it needs to terminate the ongoing relationship once it learns that a specific user intends to infringe.

The Court then restated its conclusion:

Thus, Cox is not contributorily liable for the infringement of Sony’s copyrights. Cox provided Internet service to its subscribers, but it did not intend for that service to be used to commit copyright infringement. Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents.

… As for inducement, … Sony provided no “evidence of express promotion, marketing, and intent to promote” infringement … [and] Cox repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts.  As for providing a service tailored to infringement, … Cox simply provided Internet access, which is used for many purposes other than copyright infringement. [Slip op. at 9]

The Court disapproved the Fourth Circuit’s holding that “supplying a product with knowledge that the recipient will use it to infringe copyrights is . . . sufficient for contributory infringement.”  That standard was based on the Second Circuit’s Gershwin opinion, which was cited in Grokster with apparent approval; and it had been adopted by all of the Courts of Appeals to consider the issue.  The Supreme Court did not grapple with any of that case law; instead, it simply said that the Fourth Circuit’s standard “went beyond the two forms of liability recognized in Grokster and Sony.” [Slip op. at 9-10]

Finally, the Court brusquely dismissed Sony’s argument that “Congress must have enacted the DMCA on the presumption that Internet service providers could be held liable in cases such as these” [Slip op. at 10], saying: “The DMCA merely creates new defenses from liability for such providers. And, the DMCA made clear that failure to comply with the safe-harbor rules ‘shall not bear adversely upon . . . a defense by the service provider that the service provider’s conduct is not infringing.’ §512(l).”

The Court could have noted (but didn’t) that, unlike other service providers, internet access providers like Cox are not subject to the notice-and-takedown provisions of section 512(c).  Sony’s attempt to make them liable by sending Cox tens of thousands of notices of claimed infringement therefore contradicts the implicit assumption that Congress made that hosting, caching, or linking to infringing material should be treated differently from internet “backbone” providers and internet access providers, like Cox.

The Concurring Opinion

Justice Sotomayor, joined by Justice Jackson, concurred in the result only.  Her concurring opinion criticized the majority for abandoning other common-law species of contributory liability:

The majority holds that Cox is not liable solely because its conduct does not fit within the two theories of secondary liability previously applied by this Court. In so doing, the majority, without any meaningful explanation, unneces­sarily limits secondary liability even though this Court’s precedents have left open the possibility that other common-law theories of such liability, like aiding and abetting, could apply in the copyright context.

I nonetheless agree with the majority that Cox cannot be held liable here for a different reason. Plaintiffs cannot prove that Cox had the requisite intent to aid copyright infringement for Cox to be liable on a common-law aiding-­and-abetting theory.

[Conc. op. at 1-2]

The concurring justices agreed that “this Court’s cases have held that contributory liability for copyright infringement may attach in at least two circumstances”: “distributing or providing a product or service that is incapable of “commercially significant noninfringing uses” [Conc. op. at 2] and inducement [Conc. op. at 3]. They also agreed with the majority that “neither of the[se] two prior theories of secondary liability … covers Cox’s conduct” [id.], and that “[t]he provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for in­fringement.” [Id.]  They disagreed, however, with the majority’s assertion that “[t]he intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.” [Conc. op. at 3-4 (emphasis added)]  “The inflexible limit the majority imposes is nowhere to be found in either Sony or Grokster.” [Id. at 4]

Instead, “[p]roperly understood, Sony and Grokster preserved other forms of secondary liability derived from the common law.” [Conc. op. at 4]  In Sony, the Court stated that “‘[t]he absence of such express language in the copy­right statute does not preclude the imposition of’ secondary liability, … be­cause both forms of liability are ‘imposed in virtually all areas of the law.’ 464 U. S., at 434-35.” [Id.]  And in Grokster, the Court explained “that Sony neither ‘displace[d] other theories of secondary liability’ nor ‘foreclose[d] rules of fault-based li­ability derived from the common law.’ 545 U. S., at 934-35.” [Id.]

After reviewing 17 U.S.C. § 512, the concurring opinion then complained that the majority opinion undermines the “safe harbors”: “The majority’s new rule completely upends that balance and consigns the safe harbor provision to obsolescence…. After today, … ISPs no longer face any realistic probability of secondary liability for copyright infringement, regardless of whether they take steps to address infringement on their networks and re­gardless of what they know about their users’ activity.” [Conc. op. at 6]

The concurring opinion sensibly concludes that the majority should have applied “the common-law doctrine of aiding and abetting.”  It cautioned, however, that “aiding-and-abetting liability requires proof that the defendant aided another with the intent of helping that other person succeed in committing wrongful conduct.” [Conc. op. at 7]  It cited Twitter, Inc. v. Taamneh, 598 U. S. 471 (2023), for the proposition that “the defendant has to take some ‘affirmative act’ ‘with the intent of facilitating the offense’s commission.’” [Conc. op. at 8]  It also explained that:

The common law … recognizes that intent can sometimes be inferred from what the defendant knew when he acted. The Second Re­statement of Torts explains that this kind of knowledge-based intent can be found where “the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead. [Conc. op. at 8]

Applying this standard, the concurring opinion found insufficient evidence of any specific intent to infringe:

Cox is merely supplying internet service to its cus­tomers. Nothing about that conduct is inherently culpable: Most internet traffic is lawful, and supplying an internet connection is just as consistent with lawful purposes as it is with unlawful purposes….

Nor have plaintiffs shown that Cox intended to aid spe­cific instances of infringement. That is because, based on plaintiffs’ evidence, Cox does not actually know that specific users will commit infringement using Cox’s network….

… Take, for example, a connection sold to a single-family home. Cox, after receiving three notices of copyright violations, would know only that that home’s connection is substantially certain to be used again in the future to com­mit infringement. Yet Cox would have no knowledge … who within the household committed infringe­ment. Nor … have plaintiffs shown any way for Cox to know if the infringer was a neighbor who might have the Wi-Fi password. Without that knowledge, it is not reasonable to infer that Cox intended to aid infringement committed by another person just because it provided an internet connection to some unknown infringer. [Conc. op. at 10-11]

“Cox [also] provides internet service to regional ISPs who in turn supply internet service to thousands of users.” [Conc. op. at 11-12]  There is no way for either Cox or the regional ISPs to know which of the thousands of users are “substantially certain” to infringe based on the notices. “The same is true for connections Cox provides to university housing, hospitals, military bases, and other places that are likely to have many different users.” [Conc. op. at 12]

What About Trademark Law?

In Cox, the Supreme Court expressly disapproved the Fourth Circuit’s holding that “supplying a product with knowledge that the recipient will use it to infringe copyrights is . . . sufficient for contributory infringement.”  It failed to note, however, that the standard it disapproved is virtually identical to the Supreme Court’s own standard for contributory infringement in trademark law.

In Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982), the Supreme Court expressed the standard for contributory infringement as follows:

[I]f a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit.

456 U.S. at 854.  Two features of this statement are notable.  First, unlike in patent law, it is not limited to defendants who have actual knowledge of the infringement (or willful blindness), but it includes those who have “reason to know” of infringement. That sounds like a negligence standard, rather than an intent standard.  Second, except for the “reason to know” language, it is virtually identical to the standard that the Supreme Court just disapproved in Cox.  This raises the question whether the Cox case will be used to call into question the trademark standard.

On the one hand, the Court has repeatedly referred to the “historic kinship” that patent law shares with copyright law.  Both are authorized in the same Constitutional clause (Art. I, §8, cl. 8), and both are intended to provide creators with a financial incentive to create and disseminate new inventions (patent) and new creative works (copyright).  By contrast, federal trademark law rests on a very different Constitutional foundation (the Interstate Commerce Clause, Art. I, §8, cl. 3) and serves different purposes (preventing consumer confusion and allowing a producer to reap the benefit of a reputation for quality). Indeed, in The Trademark Cases, 100 U.S. 82 (1879), the Supreme Court held that trademarks were neither “inventions” nor “writings,” so that federal trademark law could not be authorized by the Patent and Trademark Clause.  A lower court could certainly distinguish Inwood on those grounds.  On the other hand, there seems to be no good reason why general principles of secondary liability that are applicable to statutory torts generally should not be applied in the same manner to both copyrights and trademarks.

It remains to be seen whether Cox will upset the Inwood standard for contributory liability that has been widely cited and relied upon in trademark law.  I predict that defendants in trademark cases will challenge the Inwood standard, based on Cox; and it seems likely that a circuit split will develop on the question of whether Cox changes the law of contributory infringement in trademark law or not.  If so, the Supreme Court may have to take another case to resolve this conundrum of its own making.

Other Implications

The Cox v. Sony decision is a huge victory for internet access providers, who otherwise faced the possibility of either terminating lots of users or facing large statutory damage awards.  It is also a victory for consumers, who are far less likely to be threatened with loss of internet access, which is a practical necessity in today’s society. It also reinforces the previous 2-1 decision of the Ninth Circuit that credit-card companies are not contributorily or vicariously liable for providing payment-processing services to allegedly infringing websites. See Perfect 10, Inc. v. VISA Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007).

In my opinion, however, the Court should have taken the approach of the two concurring justices.  That approach would have preserved existing case law and the common-law approach to judicial rule-making, while still making it clear that losing internet access is a disproportionate penalty for alleged acts of copyright infringement.

One of the few benefits of the Cox decision is that it states a clear rule that ought to be relatively easy for lower courts to apply.  As Prof. Rub explained, the real question is whether lower courts will follow Cox literally, or whether they will find ways to distinguish its holding from other common situations.  When you squeeze a balloon, it tends to bulge out in other directions.  It is easy to predict that copyright owners will now focus on “inducement,” trying to argue that specific knowledge of infringing material leads to an inference of intent.  If one takes Cox literally, even knowledge of specific infringing files is not enough to constitute “inducement” without some affirmative steps to promote infringement; but one court has already distinguished Cox on similar (albeit tenuous) legal grounds.

It is also easy to predict that copyright owners will now focus on “vicarious” liability, which formally remains untouched by Cox.  It is already the case that vicarious liability in copyright law has been stretched far beyond its origins in agency law: there is no requirement that there be a principal-agent relationship, only that one party have the “right and ability to control” (or “supervise”) the other party.  Most courts have held that is satisfied by a showing that the party has the ability to terminate access.  Cox would likely have been held vicariously liable if the plaintiff could have shown that it received a financial benefit from infringement.  Will advertiser-supported services fall into this category?  It seems likely that some lower courts will say “yes.”  I think an honest reading of Cox should lead to the conclusion that imposing vicarious liability on internet access providers should be equally problematic; but because the Court expressly did not address vicarious liability, copyright holders will surely try to use it.

Consequently, I think “hosting” providers will still want to follow the “notice-and-takedown” procedures in 17 U.S.C. § 512.  Unlike access providers, hosting providers face the possibility of “direct” liability under the “server” test that the Ninth Circuit uses for “direct” liability.  Unlike contributory infringement, “direct” liability and vicarious liability do not require knowledge or intent, so the absence of an intent to infringe will not save a “hosting” provider.  Compliance with the § 512(c) safe harbor, however, will keep the provider from being held liable for direct and vicarious liability as well as for contributory infringement.  That gives such providers a strong incentive to maintain their “notice-and-takedown” procedures.  It also helps with appearances, because at least it looks like the defendant is trying to do something to discourage blatant infringement.

The hard test will come when a hosting provider doesn’t qualify for the safe harbor: will courts let them off the hook under Cox, or will they find ways to work around the Cox opinion, as Prof. Guy Rub recently argued in this space?  Only time will tell.

Conclusion

Cox v. Sony is undoubtedly a landmark opinion on contributory infringement that will now appear in all copyright and IP casebooks.  It seemingly limits contributory infringement to just two theories: inducement (from Grokster) and “tailoring” (from Sony).  It seemingly rejects the “knowledge and material contribution” standard that has been used by the lower courts for over 50 years, and that the Supreme Court itself has used in trademark law.  Whether it ultimately has that effect remains to be seen; but it certainly raises multiple avenues for argument that are likely to occupy the lower courts for years to come.

Blog Coverage of Cox v. Sony

The Cox Shock: A Tectonic Shift or Just a Tremor? (Guest Blog Post)

Will Lower Courts Find Ways Around Cox v. Sony? You Betcha

Prof. Goldstein on Cox v. Sony (Excerpt from His Treatise)

Quick Comments on the SCOTUS Cox v. Sony Ruling

The post U.S. Supreme Court Narrows Secondary Liability in Copyright Law–Cox v. Sony (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

The Supreme Court’s decision in Cox v. Sony sent a shockwave through the copyright world. In an opinion that felt like a cold shower for copyright owners, Justice Thomas essentially dismantled the familiar “specific knowledge plus material contribution” framework for contributory liability that had governed the circuits for decades.

If you take the opinion at face value, holding a service provider liable for user infringement now seems to require either inducement (per Grokster) or showing that the service was “tailored to infringement” (presumably, following Sony). Meeting either of those bars is exceptionally difficult, and on paper, it could massively shrink the scope of secondary liability.

The result is that copyright owners seem to have lost a major tool to address large-scale infringement facilitated by intermediaries. More broadly, this result seems to undermine the delicate balance between copyright owners, their consumers, and intermediaries.

Unsurprisingly, the reaction has been swift and sharp. Paul Goldstein, right on this blog, called the opinion “ill-considered.” Shira Perlmutter, the Director of the Copyright Office, nicely summarized the overall sentiment, suggesting that the court “put little thought” into the implications of its opinion and noting that “we’re all still reeling from this a bit.”

I am not here to defend the Cox majority. Not even remotely. The decision seemingly overrules, perhaps unknowingly, dozens of circuit precedents and veers away from settled common-law notions of liability. It feels both unjust and inefficient to let a party that knowingly assisted in infringement walk away scot-free.

But I am here to offer a prediction: the sky will not fall. While Cox looks like a tectonic shift, I suspect its actual impact will be significantly more modest. If history is any guide, the copyright system is remarkably adept at absorbing, mitigating, and—dare I say—circumventing the Supreme Court’s attempts at central planning.

The Myth of Supreme Court Supremacy

In a forthcoming article, Circumventing the Supreme Court: Copyright Law and the Limits of Judicial Centralization, I argue that we consistently overestimate the Court’s ability to actually change copyright law.

We’ve seen this movie before. Every few years, the Court hands down a decision that seems poised to reshape the field: Star Athletica supposedly wrecked separability and opened the floodgates for industrial design protection; Aereo looked like the death of the volitional conduct doctrine; Kirtsaeng presumably gutted the ability of copyright owners to exercise post-sale control; and Eldred and Golan were read as giving Congress a blank check on copyright expansion, allowing it to extend its terms, maybe indefinitely. Each of these decisions generated a wave of commentary predicting dramatic consequences. I’ve participated in that tradition too.

But none of those things really happened. Instead, the copyright system showed incredible resiliency.

The reason is partly structural: the Supreme Court is an absentee landlord. Outside of fair use, it handles any given copyright question like a cicada emergence: showing up, then disappearing for another couple of decades. Secondary liability is a perfect example: Sony (1984), Grokster (2005), Cox (2026). That’s a 21-year cycle.

In the long stretches between those decisions, lower courts and other repeat players run the show. When the landlord is away, the tenants can rearrange the furniture.

So, how will the system respond to the hole that Cox just punched in copyright law’s liability scheme? Yogi Berra taught us that it’s tough to make predictions, especially about the future. Still, I can offer a few incomplete and non-mutually exclusive possibilities.

1. Embracing the Minority: The “Aereo” Maneuver

The boldest way to circumvent a majority opinion is probably to treat the minority view as the true law of the land. It sounds like heresy, and in many respects it is. But we have a recent blueprint: the volitional-conduct doctrine after Aereo.

In Aereo, the Justices split over the volition requirement. Justice Scalia, in dissent, embraced it and the body of circuit law that had developed around it over the years. Justice Breyer’s majority, by contrast, didn’t even mention it. Instead, it reasoned that because the system looked like a cable company, it should be treated like one, brushing aside the (very real) technological nuances.

Scalia warned that this would leave automated systems in legal limbo for decades. In reality, it took months. Lower courts essentially shrugged and went back to business as usual, applying volitional conduct as if Aereo had never happened.

When plaintiffs argued the doctrine was dead, the Second, Fifth, and Ninth Circuits doubled down with reasoning that was delightfully brazen: they heavily leaned on Scalia’s dissent as evidence that the doctrine was well-established, and even now endorsed by the Supreme Court. And as for the majority, it did not “directly dispute or comment on Justice Scalia’s explanation of the doctrine” or “explicitly reject Justice Scalia’s formulation of the volitional-conduct requirement.”

Cox might meet a similar fate. Justice Sotomayor’s concurrence seems aligned with pre-2026 circuit precedent and thus provides a ready-made framework to preserve the old regime.

Will that be a faithful reading of the majority opinion? Not really. But fidelity hasn’t always been the driving force in applying Supreme Court copyright opinions, like Aereo. So we shouldn’t be too surprised if judges lean on Sotomayor’s opinion, noting, with a straight face, that Thomas did not “directly dispute” or “explicitly reject” her analysis.

2. Narrowing to the Facts: The Grokster / Kirtsaeng Treatment

If you can’t ignore a decision, you can shrink it until it only fits specific, idiosyncratic facts.

We saw this with Grokster. Lower courts confined inducement to situations involving exceptionally egregious conduct. The inducement doctrine became real, but also rare. We saw it with Kirtsaeng, too, where the Court embraced a broad reading of the first sale doctrine, but lower courts were reluctant to apply its logic in other contexts, including in the digital space. The first-sale doctrine remained broad, but inapplicable to most of today’s content.

Cox could follow the same path. Courts can emphasize its facts: a passive service provider with no specific knowledge that took some steps to discourage infringement. Multiple statements in the Cox majority, such as “this Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe,” can assist lower courts in distinguishing it from defendants whose knowledge is broader.

There is a wrinkle here. On their face, Grokster and Kirtsaeng left significant leeway to lower courts. The Cox majority, sadly, did not leave as much space. Textually, it is needlessly broad (a rare move for the Roberts court, both outside and within copyright law). That makes narrowing it harder, at least on paper. But harder is not the same as impossible. We didn’t have to wait long to see that dynamic play out. As Eric noted, just six days after the Supreme Court opinion, a district court in California distinguished it because Cox, presumably unlike the defendant there (Twitter), discouraged copyright infringement.

3. Expanding Neighboring Doctrines: The Star Athletica Pivot

The most likely response, in my view, is not to resist Cox directly, but to work around it.

When the Supreme Court closes a door, lower courts often just open a window in the next room. This is the hydraulic nature of copyright law: if you squeeze one doctrine, the pressure simply moves elsewhere.

Consider, for example, Justice Thomas’s previous copyright masterpiece:  Star Athletica. It might seem to have thrown the door wide open to the copyrightability of industrial designs, but many lower courts achieved comparable filtering, most often through broader use of other doctrines, such as the idea-expression distinction, the merger doctrine, or scènes à faire. Others granted plaintiffs a noticeably thin copyright. Overall, those moves mitigate (although not eliminate) the potential impact of Star Athletica.

There are many doctrines that can attempt to fill the gap that Cox left in effective copyright enforcement. I’ll mention a few immediate suspects:

A. Direct liability

If contributory liability becomes harder to prove, plaintiffs might lean more heavily on direct liability. That means revisiting doctrines that have traditionally limited it, especially volitional conduct.

The volitional conduct doctrine has always been somewhat fragile: thin textual grounding, no clear Supreme Court endorsement, and uneven (and somewhat unclear) lower court application. It would not take much for courts to stretch it. Eric alluded to the same issue in discussing a recent Twitter decision, where a district court held (quite strangely, in my opinion) that the company acted with volition when it did not respond to DMCA takedown notices.

B. Vicarious Liability

Vicarious liability could also do more work. It requires the right and ability to control the infringing activity and a direct financial benefit from it. Historically, courts have applied this doctrine cautiously in the online context. But if contributory liability becomes harder to establish, courts may be more willing to find supervisory power in a platform’s architecture and a financial benefit in its business model.

C. Inducement

Finally, courts can stay within the contributory framework but expand what inducement means. More than the Grokster Court itself, it was lower courts that chose to define the doctrine narrowly. In the immediate aftermath of Grokster, many commentators worried that inducement would be applied broadly and threaten the development of the internet. In practice, however, lower courts have been reluctant to find inducement without evidence that the defendant actively marketed its services to infringers. Other factors the Court pointed to in Grokster, such as a failure to filter or a business model tied to infringement, have not been enough.

But after Cox, if specific knowledge is indeed not a route to find contributory liability, courts may be more willing to treat a wider range of conduct as evidence of intent to induce infringement.

4. The Long Shot: A Legislative Reform

There is also, at least in theory, a legislative path.

Congress has been largely inactive in copyright for decades. But a doctrinal shock can create political momentum. If Cox is perceived as significantly weakening copyright enforcement, rights holders may push for statutory reform.

Whether Congress will act is uncertain. Structural constraints that have limited copyright legislation in recent decades remain in place. But Cox increases the pressure. Shira Perlmutter has already hinted in that direction.

Conclusion: Copyright resiliency

Nobody, of course, knows what will happen next. But I would be very surprised if courts allow intermediaries to knowingly facilitate infringement without meaningful legal consequences.

If Cox created that gap, the repeat players within the copyright ecosystem, especially lower courts that routinely deal with copyright law, will find ways to bridge it. That is what the copyright system has done repeatedly.

Cox may be the rare decision that genuinely reshapes the scope of copyright protection, but if so, it would be the first time in decades. Instead, I’d comfortably bet that the lower courts will be rearranging the furniture.

The post The Cox Shock: A Tectonic Shift or Just a Tremor? (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

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.

[UPDATE: Compare Art Records LLC v. YouTube LLC, 2026 WL 1669167 (N.D. Cal. June 9, 2026), rejecting an argument that YouTube “[a]ffirmatively rejected takedown requests while exercising discretionary control over whether the videos remained available” was volitional conduct.]

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.

More Blog Posts About Michael Grecco

• What’s the Difference Between Copyright Takedown Notices and Spam?–Michael Grecco v. Fandom
• Blogger’s Photo Republication Isn’t Fair Use–Golden v. Grecco
• Reminder: Cutting-and-Pasting Photos from the Internet Is Hazardous to Your Legal Health–Grecco v. Valuewalk

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