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.

This case is a different lawsuit against Classpass, this time over unredeemable Classpass credits. Despite the unmistakable message from the Ninth Circuit that TOS formation screens should be reviewed exactingly, Judge Orrick of the N.D. Cal. district seems to be living in the past. He surprisingly holds that Classpass successfully formed its TOS and sends the case to arbitration. Why did Classpass succeed here when it failed last year at the Ninth Circuit? (If you expect a logical and sensible answer to that question, you must be new to the blog).

* * *

The named plaintiff, Blackburn, navigated through three relevant TOS formation screens. The opinion never precisely identifies which one successfully formed the TOS. It seems like all three did?

(The TOS contained an arbitration clause that everyone agrees applies to this lawsuit if the TOS was properly formed).

Blackburn created her Classpass account in 2019 by navigating this screen and choosing the option to continue with her Facebook credentials (the 2019 Sign Up Screen):

A few days later, in the next screen, she acquired her subscription membership through Classpass’ refer-a-friend program (which entitled her to additional credits) (the 2019 Checkout Screen):

In 2023, Blackburn reactivated her Classpass membership by navigating this screen (the 2023 Reactivation Checkout Screen):

Everyone seems to accept the court’s characterization that all three screens are “sign-in-wraps.” That turns us over to the now-familiar three-part test for evaluating sign-in-wrap formation.

Element 1: Reasonably Conspicuous Notice

Blackburn challenged the 2019 Login Screen’s visibility on three grounds:

• It was part of a 5-screen signup sequence. The court responds “the screens are not cluttered and follow a logical flow.”
• The TOS offer was the smallest font size on the screen. The court says it was the same size as other fonts on the screen.
• The TOS offer language was below the “Continue with Facebook” button she clicked. The court says “the “Terms of Use” is bolded, underlined, and in traditional hyperlink blue. That offsets any real concern that a reasonably prudent Internet user would not know or be aware that those hyperlinks existed just below the “Continue with Facebook” button.”

The court is also OK with the 2019 Checkout Screen visibility. The court acknowledges the TOS offer language in grey font, but says the:

text is still visually set apart from the other font that appears on the screen, despite the fact that it does not appear in blue font….

the hyperlinks are denoted by a bolded light grey font and underline, sufficiently contrasting the white background. Further, the “large text block[]” to which Blackburn refers is actually a two-sentence paragraph separated in space by the one-sentence paragraph denoting the Terms of Use, which makes the presentation of the Terms of Use hyperlink even more noticeable

The court is similarly OK with the 2023 Reactivation Checkout Screen visibility:

The text referring to the Terms of Use is once again just above the commitment button, written in light grey, but bolded font, and while not denoted in traditional hyperlink blue, is set apart from the rest of the text on the screen such that its presence draws the eye. The primary difference between the 2023 Reactivation Checkout Screen and the 2019 Checkout Screen, as Blackburn points out, is that the 2023 Reactivation Checkout Screen includes a black and bolded pronouncement to the user that “you’ll automatically be charged for a full-priced monthly credit plan subscription” and includes, in blue and underlined hyperlinked font, access to information about which Fees may apply. Those decisions to add additional notice of specific terms do not take away from ClassPass’s efforts to make the Terms of Use conspicuous by setting them apart in bolded, underlined font, in a separate paragraph with font color that contrasts the white background.

Element 2: Transaction Context

The Ninth Circuit punted on this factor in Chabolla (wrongly, IMO, because it’s clearly intended to create a long-term subscription), so this court does too. This court adds: “unlike in Chabolla, Blackburn took the additional step and created a ClassPass account by logging in with her Facebook account.”

Element 3: Manifestation of Assent

“Blackburn clicked a button after being presented with a hyperlink to the Terms of Use.”

The court distinguishes Chabolla:

in Chabolla, there was no indication that a user was ever signing up. Here, at the top of the 2019 Sign Up Screen there is a heading that unambiguously reads in bold lettering: Sign up

Blackburn pointed out that in the 2019 Signup Screen, the disclosures inconsistently and ambiguously refer to both “the” TOS and “our” TOS. The court responds that the argument “makes no sense. If a user is signing up through a preexisting Facebook account, that user must have necessarily already agreed to be bound to any Terms of Use or other terms of Facebook. It is not ambiguous to a reasonable Internet user signing up for an account or membership with ClassPass, even by way of Facebook, that any newly presented Terms of Use are those of ClassPass, not Facebook.”

With respect to the 2023 Reactivation Checkout Screen, Blackburn pointed out that the TOS offer language referred to “the” button but there were two buttons below it. The court responds:

“the” in the context of the 2023 Reactivation Screen must mean “either,” because a user attempting to access the 45 free Credits can only click one button to do so, or as the 2023 Reactivation Screen denotes, “the button.”

Normally, “the” connotes a singular reference. Here, the court reads it to connote plural references.  ¯\_(ツ)_/¯

In a footnote, the court says: “I do agree with Blackburn that the 2019 Checkout Screen’s language (“By clicking the Redeem now button, I agree to the Offer Terms and Terms of Use . . .”) is curious because it leaves out whether a user who chooses to pay using G Pay is likewise bound. But a reasonable Internet user would likely understand that payment using either method would bind the user to the visibly hyperlinked Terms of Use and it is clear that Blackburn manifested assent via the 2019 Sign Up Screen and 2023 Reactivation Screen in any event.”

Implications

I view the Chabolla and Godun opinions as companion cases. They came out just a couple of months apart, and they both took highly skeptical approaches to online TOS formation. Remarkably, this court doesn’t cite Godun even once. That is a conspicuous omission.

To me, this ruling is another reminder of how TOS formation analysis has descended into Calvinball. As Judge Bybee warned in dissent in the 9th Circuit Chabolla case: “minor differences between websites will yield opposite results….That sows great uncertainty in this area.” Here, comparing this lawsuit to Chabolla, we have the exact same defendant and similar formation processes from around the same historical time period, yet Classpass gets TOS formation when the Ninth Circuit denied it last year. The outcome appears to flip based on tiny differences.

I will also note how many of the court’s assessments turn fundamentally on consumer expectations, except the court doesn’t cite a shred of empirical evidence about what consumers think. The missing empiricism plays a major role in the Calvinball phenomenon.

If the court had been inclined to do so, it could have picked apart each screen and found deficiencies in each. After all, that’s what the Ninth Circuit did in its Chabolla case. Some examples:

• In the 2019 Signup Screen, the TOS offer language refers to “sign up with Facebook” and the button says “continue with Facebook.” Plus, there is a second “sign up” button lower on the screen that the court ignores even though it matches the TOS offer language. All of this may sound ticky-tack, but…in the Chabolla case, the court rejected a screen where the TOS offer said “I agree to” and the button said “redeem now,” and in the Godun case, one of the screens failed because the TOS offer said “I agree” and the button said “connect now.”
• In the 2019 Checkout Screen, the TOS offer language is stacked below a large paragraph of offer terms, and it appears to be a slightly smaller or lighter font than those. The court could say that reasonable consumers would spot it anyway, but that’s an empirical question without empirical support. Many other courts would have treated the text block as so monolithic that no sentence stood out.
• The 2023 Reactivation Confirmation Screen had the text block problem plus (as the court discussed) the imprecision of a reference to “the” button when there were two button options.

To be fair, I don’t necessarily support courts doing this degree of ticky-tack pixel policing. However, that level of exactitude drove the Chabolla and Godun decisions.

The screenshots at issue all predate the Chabolla and Godun decisions. Today, there’s no excuse for weak sign-in-wraps like this. I expect you to do better. The courts will expect that too.

As Judge Bybee said in dissent in Chabolla, “Our decision today will drive websites to the only safe harbors available to them, the clickwrap or scrollwrap agreements.” Want to opt-out of the TOS formation Calvinball? Take the certainty of clickwraps over the chaos of sign-in-wraps.

Case Citation: Blackburn v. Classpass USA Inc., 2026 WL 962734 (N.D. Cal. April 9, 2026)

The post Remember When the Ninth Circuit Rejected Classpass’ TOS Formation? About That…–Blackburn v. Classpass 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 court summarizes the state’s claims:

The Commonwealth alleges that Meta Platforms, Inc., and Instagram, LLC (collectively, Meta), engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.

Meta moved to dismiss on Section 230 and other grounds. The lower court denied the motion. Meta sought an interlocutory appeal, which the MA Supreme Court permitted, but only to review the Section 230 issue.

In this ruling, the MA Supreme Court unanimously agreed with the lower court that Section 230 didn’t immunize Meta when “the claims allege harm stemming from Meta’s own conduct either by designing a social media platform that capitalizes on the developmental vulnerabilities of children or by affirmatively misleading consumers about the safety of the Instagram platform.”

Section 230

Treated as Publisher

The court starts with its own “plain language” review of what it means to be treated as a publisher. When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.

Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.

(I would say that the botched statutory reading would be the kind of thing that should be fixed on appeal, but the US Supreme Court’s specialty is selectively reading statutes and precedent to support results-oriented decision-making, so I guess other courts are emboldened to do that too…?)

The court tries to sum up its “plain language” review. Citing the awful Henderson 4th Circuit (which the Fourth Circuit itself has implicitly repudiated), the court says:

These courts have rejected the argument that § 230(c)(1) provides immunity from liability “anytime there is a ‘but-for’ causal relationship between the act of publication and liability,” as it “bears little relation to publisher liability at common law.” Engaging in traditional publishing activity “alone is not enough.”…

(Note: along the way, the court includes quotes of the mockable “get-out-of-jail-free” and “lawless no-mans-land” characterizations of 230, despite my prior debunking of both phrases. Another way the court undermined its own credibility).

Because “the plain meaning of the statute lends itself to competing constructions,” the court then turns to the legislative history for more insight into the meaning of the word “publisher.” This leads to the one-millionth retelling of the Cubby/Stratton Oakmont storyline, with no new payoffs.

Instead, citing Henderson again, the court restates the statutory language in garbled fashion: “Congress intended to immunize interactive computer service providers against claims that would hold them liable as intermediaries for injuries caused by information provided by third-party users of their platforms.”

Relying on that garbled restatement, the court says:

we decline Meta’s invitation to read § 230(c)(1) immunity so broadly as to encompass all claims that implicate publishing activities regardless of whether the claims seek to hold the service provider liable for the content of the information published….

a claim treats a provider as a publisher of information where it meets both the dissemination and content elements.

I’d need to see how Meta argued this, but it feels like the court is rejecting a strawman. Meta publishes third-party content–everyone agrees on that. The service features challenged by the state AG relate to the manner in which Meta presents that third-party content to Meta’s audience. To me, a publisher’s choices of what third-party content to publish and how to publish that third-party content are integrated decisions. In other words, the content selection and presentation decisions are part of the same publication decision. As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.

In any case, by saying that 230 only applies to claims that derive from the substance of the third-party content item, the court can disregard a LOT of precedent that applied Section 230 to design defects. The court says the only oppositional precedent is some language in the Social Media Addiction federal decision, which the court denigrates by saying the judge in that case “did not appear to consider the common-law origins of publisher liability or the statute’s legislative history. We are not persuaded by its reasoning.” [Yes, it’s jarring to see Meta cite the CA social media addiction case as support for its position given that how poorly the California cases have been going for Meta.]

Liability Based on Third-Party Content

Claim for unfair business practices. Having said that Section 230 distinguishes the decisions of what content to publish (230-protected) and how to present it (not protected by 230), the court is positioned to uphold all of the claims.

The court says: “The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged.”

Meta responded that “in the absence of third-party content, the design features could not facilitate addiction in young users.” (My framing: if social media delivers third-party content, what exactly are users “addicted” to?). The court replies:

But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published…

the fact that a claim concerns publishing activities, including the use of algorithms in connection with publishing activities, is not enough to bring the claim within the immunity provided by § 230(c)(1)

In a footnote, the court adds: “with respect to the notifications feature, Meta appears to be the information content provider.” But…what content is included in the notifications, and where does it come from?

In a slight piece of good news, the court rejects the state’s Lemmon v. Snap analogy because Lemmon’s “claims did not concern the provider’s publishing activity at all. [Eric’s note: the Lemmon plaintiffs expressly disclaimed all liability based on the content produced by the filter.] By contrast, here, the challenged features are publishing tools that control how Meta publishes content to users of its platform.” I wish more courts would similarly reject the plaintiffs’ many miscitations to Lemmon.

Claim for deceptive business practices. The claim “is based on Meta’s own speech — its allegedly false statements that Instagram is safe and not addictive, and that Meta prioritizes young users’ well-being, despite internal reports and communications suggesting awareness of the harmful effects of Instagram.” There are obvious puffery/opinion defenses that could apply here (see, e.g., the YOLO remand in Bride v. Snap, Inc., 2026 WL 855148 (C.D. Cal. March 16, 2026) that I will eventually blog) but are not at issue in the 230 discussion.

Also, some courts have applied Section 230 to false advertising claims when those claims are fundamentally based on how the service handles its content moderation decisions, such as claims about “safety.” The court doesn’t acknowledge that precedent and instead treats Section 230 as categorically inapplicable to false advertising claims.

Claim for defective age-gating. “the claim focuses on Meta’s own affirmative misstatements about the inaccessibility of its platform to underage users.” Another possible puffery issue.

Nuisance. I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”

What Happens Next?

Meta could appeal this ruling to the US Supreme Court. That would be a risky move because the US Supreme Court could really go sideways on a decision like this. Also, I’m skeptical the US Supreme Court would grant cert.

Meta could choose to prioritize winning this case on remand on non-230 grounds. For example, the MA Supreme Court validated that Meta’s service features at issue are part of its content publication process. Perhaps that will revitalize Meta’s First Amendment defense?

Whether Meta chooses to appeal or double-down on remand, it’s likely that the CA federal and state court social media addiction cases will have important new developments before any material developments happen in this case. Those developments could swamp the effects of this lawsuit. For example, if Meta loses more bellwether trials in California, the outcome of this case may be comparatively inconsequential.

Quo Vadis Section 230?

This is not a good opinion for Section 230 on several dimensions.

First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.

Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).

Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.

Even if this opinion doesn’t outright eliminate Section 230 in Massachusetts, it’s a sign of how 230 workarounds keep proliferating, contributing to the swiss cheese-ification of Section 230. When the bubbles in the swiss cheese become too large, the cheese wedge lacks structural integrity and falls apart. That is where 230 is heading, if it’s not already there.

Case Citation: Commonwealth v. Meta Platforms, Inc., 2026 WL 969430 (Mass. Supreme Jud. Ct. April 10, 2026)

The post With Opinions Like This, Congress Doesn’t Need to Repeal Section 230–Massachusetts v. Meta 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.

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

The post Will Lower Courts Find Ways Around Cox v. Sony? You Betcha appeared first on Technology & Marketing Law Blog.

* * *

In Cox Communications, Inc. v. Sony Music Entertainment, an ill-considered 2026 decision that will serve the interests neither of copyright owners nor of copyright users—nor, for that matter, society’s interest in a balanced copyright system—the United States Supreme Court took an axe to contributory liability, ruling that an internet service provider serving approximately six million subscribers was not contributorily liable for its subscribers’ copyright infringements merely because it had provided “a service to the general public with knowledge that it will be used by some to infringe copyrights.” According to the Court’s opinion, written by Justice Clarence Thomas, “[t]he provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement.” To establish such intent, “a copyright owner must show one of two things. First, it can show that a party affirmatively ‘induc[ed]’ the infringement. Or, second, it can show that the party sold a service tailored to infringement.”

Image produced by ChatGPT March 2026

“Inducement” has an established place in copyright jurisprudence. But the concept, “tailored to infringement,” appears nowhere in the Copyright Act or in copyright case law. The late Justice Ruth Ginsburg’s concurring opinion in Metro-Goldwyn-Mayer Studios Inc. v Grokster Ltd., to which Justice Thomas ascribed the term, in fact nowhere included those words. Justice Ginsburg did employ the terms “substantial” or “commerciallv significant” noninfringing uses, referring to the concept that had become a central determinant for withholding contributory liability for providing goods or services since the Court first adopted it in Sony Corp. of America v. Universal City Studios, Inc. Justice Thomas’s treatment of the two terms as equivalent—“[a] service is tailored to infringement if it is ‘not capable of “substantial or commercially significant”’ non-infringing uses—overlooks not only that the first term is materially narrower than the second, but also that Sony borrowed it from the patent statute with the distinct object of ensuring that consumers not be required to pay monopoly tribute for otherwise unprotected goods or equipment. If selling salt tablets that can be used in a patented salt dispenser should not be actionable because the tablets have a substantial noninfringing use, so sales of video recording devices employed to copy copyrighted works should not be actionable if the devices possessed one or more substantial noninfringing uses, such as time-shifting recorded programs for later viewing.

By assimilating “substantial noninfringing use,” an objective, competition policy-based measure of liability, into a necessarily subjective intent-based measure, Cox seems likely to destabilize entrepreneurial planning for the introduction of new devices and services for exploiting copyrighted works. To be sure, service providers may see in the opinion a license to deliver services to subscribers–even though they know that many and even most of the uses may infringe–so long as they don’t promote or specifically design their services for infringement. In fact, if the Court believed that its narrowing of contributory liability to inducement by words or by device or service design, would enhance marketplace certainty, it might not have reflected carefully enough on the flimsy, indeed passive, evidence that it accepted in Grokster as evidence of inducement: that the defendants aimed “to satisfy a known source of demand for copyright infringement”; that defendants failed “to develop filtering tools” to “diminish the infringing activity using their software”; and “the commercial sense of their enterprise turns on high volume use.” Cox offers small solace to service providers if an act of omission such as failure to install filtering tools will subject them to liability.

The Court’s attempt in Cox to circumscribe contributory liability on the internet is understandable. The prospect of an aggregation of tens of thousands statutory damage awards—the award against Cox was $1 billion—can be daunting, indeed devastating, for even the most well-heeled service provider. The correct solution, however, would be for Congress to revise the Act’s statutory damages provision, and at least one bill has been introduced to that end. The prospect of secondary liability for generative AI platforms for the conduct of their users in prompting texts, sounds and images similar to copyrighted works may also have figured in the Court’s attempt at caution. But the question of secondary liability—indeed, of direct infringement liability—for these AI activities has not yet been directly addressed by the courts, or by the Congress, and for the Supreme Court to legislate on the question without a trial record or statutory text before it would be premature.

The terrain of secondary copyright liability generally has turned treacherous since the introduction in 1998 of the internet safe harbors, for the expectations of service providers and their subscribers have over the ensuing years been shaped less by secondary liability doctrines than by the mechanisms of the safe harbors. Lawsuits defining the boundaries of liability on the internet have been displaced in the vast number of potential conflicts by compliance with the safe harbors, including by automated means such as YouTube’s immensely successful Content ID system. If there has been litigation over service provider liability, it has been mainly to define the terms of the safe harbors and not to measure the reach of secondary liability doctrines. As proposed elsewhere in this treatise, the solution to this legal vacuum is for courts to populate it with the norms that business operations under the safe harbors have come to define as reasonable behavior among copyright owners and service providers alike. Sadly, the Court in Cox ignored this possibility. Indeed, as Justice Sonia Sotomayor wisely observed of the safe harbors in her concurrence in Cox, “[i]mportantly, Congress did not provide that ISPs could never be secondarily liable for copyright infringement. Instead, it struck a balance by creating incentives for ISPs to take reasonable steps to prevent copyright infringement on their networks, while also assuring ISPs that they do not need to take on the impossible task of responding to every instance of infringement on their networks….The majority’s new rule completely upends that balance and consigns the safe harbor provision to obsolescence.”

The post Prof. Goldstein on Cox v. Sony (Excerpt from His Treatise) appeared first on Technology & Marketing Law Blog.

Take-Two sued PlayerAuctions for IP infringement. Some background on the lawsuit. PlayerAuctions brought a 512(f) counterclaim. The court rejects Take-Two’s motion to dismiss the 512(f) counterclaim:

PlayerAuctions alleges that Take-Two lacked a “subjective good faith belief” that the identified listings infringed Take-Two’s copyrights because Take-Two failed to consider whether the listings qualified as fair use prior to sending the Takedown Notice.  The Takedown Notice does not reference fair use or indicate that Take-Two considered the doctrine. Further, PlayerAuctions alleges that Take-Two has previously considered material similar to that in the listings to be fair use. Thus, PlayerAuctions asserts, had Take-Two considered fair use, it would have recognized that many of the identified listings constituted fair use.

These allegations, taken as true at the pleading stage, are sufficient to establish that Take-Two did not consider fair use before sending the Takedown Notice. If Take-Two did not consider fair use, it could not possibly have formed a good faith belief that the listings were unauthorized by the law, because “fair use is ‘authorized by the law.’ ” Lenz, 815 F.3d at 1153. Thus, PlayerAuctions plausibly alleges that Take-Two lacked a subjective good faith belief that the listings were infringing before sending the Takedown Notice, which is adequate to state a claim under § 512(f).

It’s a nonsequitur for the court to treat the absence of a fair use reference in the takedown notice as prima facie evidence of subjective bad-faith. DMCA’s 512(c)(3) does not require a takedown notice sender to reference anything about fair use, and it would be completely consistent with the governing Rossi caselaw for a takedown notice sender to consider fair use privately and not mention fair use in its takedown notice. Perhaps the court will reach this point at summary judgment, after Take-Two has a chance to explain its decisions, including what it did to evaluate fair use in these circumstances.

For now, the obvious implication is that if you want to reduce the chances of a 512(f) plaintiff surviving a motion to dismiss based on Lenz, the takedown notice should include a statement that the sender considered fair use for the targeted items and concluded that it did not apply.

Evaluation of fair use never happens before sending robo-takedown notices, so this ruling seems to suggest that the robo-notices are 512(f)-bait for that reason. Given that courts have tolerated robo-notices for many years, this court’s approach is either an outlier or a warning sign that courts are becoming intolerant of robo-notices.

The kicker is that the court has already said that Take-Two’s claims against PlayerAuctions have survived a motion to dismiss, so Take-Two suggested that ruling indicates its claims are valid enough to demonstrate Take-Two’s subjective good faith.  The court responds “meh,” pointing to the pleading burdens for a motion to dismiss.

Case Citation: Take-Two Interactive Software, Inc. v. PlayerAuctions, Inc., 2026 WL 856666 (C.D. Cal. March 26, 2026). The initial complaint.

BONUS: Art Akiane v. Art & Soulworks LLC, 2026 WL 893344 (N.D. Ill. March 31, 2026). 512(f) shows up in a dispute over ownership: “the Defendants allege that Art Akiane’s takedown letters were relied on by its customers to remove, return, and request a refund on purchased inventory. The Defendants only point to Carpentree’s customers as those who returned Akiane-related inventory to Carpentree due to receiving a takedown notice. But the alleged removal of online Akiane-related material by Carpentree’s customers does not amount to evidence of injury incurred by either of the Defendants. So, the Defendants have not shown a genuine dispute on whether they were harmed by Art Akiane’s takedown notices. Without evidence of harm, the Defendants cannot satisfy the damages requirement of Section 512(f).”

Prior Posts on Section 512(f)

* Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices?
* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post Do DMCA Takedown Notices Need to Expressly Refer to the Lack of Fair Use?–Take-Two v. PlayerAuctions appeared first on Technology & Marketing Law Blog.

This ruling follows a jury verdict in a New Mexico trial against Meta involving similar arguments. The NM jury imposed $375M in damages.

Together, these rulings indicate that juries are willing to impose major liability on social media providers based on claims of social media addiction. That liability exposure jeopardizes the entire social media industry. There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.

The Los Angeles jury verdict is the first of three bellwether trials in Los Angeles, with more bellwether trials to follow in summer in the federal case. As such, today’s verdict is just one datapoint about liability and damages. The other trials could reach divergent outcomes, so this jury verdict isn’t the final word on any matter.

The social media defendants will appeal the adverse jury verdicts. They have several good grounds for an appeal, including how products liability claims apply to intangible services, questions about who caused the victims’ harms, and the scope of speech-protective doctrines like the First Amendment and Section 230. If the appeals court disagrees with the lower court on one or more of these issues or others, the jury verdicts might be reduced or wiped away entirely.

In parallel with the court cases, legislatures have enacted laws providing remedies against social media services and others that substantially overlap the plaintiffs’ claims. No matter what happens in the trials, social media services also will have to avoid or overturn those laws as well if they hope to retain the status quo.

Due to the legal pressure from the jury verdicts and the enacted and pending legislation, the social media industry faces existential legal liability and inevitably will need to reconfigure their core offerings if they can’t get broad-based relief on appeal. While any reconfiguration of social media offerings may help some victims, the changes will almost certainly harm many other communities that rely upon and derive important benefits from social media today. Those other communities didn’t have any voice in the trial; and their voices are at risk of being silenced on social media as well.

* * *

I did an interview with a reporter in response to this statement:

Reporter: “Could you say a bit more about how Section 230 might be back in play during the appeal? Do you believe the court’s ruling that Section 230 didn’t apply will be a big facet of the defendants’ argument during appeal?”

Me: The lower court rejected Section 230’s application to large parts of the plaintiffs’ case, holding that the claims sought to impose liability on how social media services configured their offerings and not third-party content. But social media’s offerings consist of third-party content, and the configurations were publishers’ editorial decisions about how to present it. So the line between first-party “design” choices and publication decisions about third-party content seems illusory to me. An appellate court will have to address this.

Reporter: “are you saying it’s likely they’ll appeal on the grounds that social media isn’t a product like tobacco, and argue that the real cause of harm was something else (family life, school, etc)?”

Me: KGM’s life was full of trauma. The social media defendants argued that the harms she suffered were due to that trauma and not her social media usage. (Indeed, there was some evidence that social media helped KGM cope with her trauma). It is highly likely that most or all of the other plaintiffs in the social media addiction cases have sources of trauma in their lives that might negate the responsibility of social media.

Reporter: “Do you think the verdict in the LA trial sets any legal precedent?”

Me: This is just one of three bellwether trials, so the trial was designed to provide one datapoint about potential liability. Having said that, regulators and plaintiffs around the globe are surely going to feel emboldened by the jury verdict to impose their views on how social media services should publish content.

Reporter: “Does this verdict make it more likely that the others will have a similar outcome?”

Me: Not necessarily. Both the plaintiff and defense lawyers will iterate their presentations and hone their messages for the next trials. Also, the victims’ cricumstances will be different. Further, the jury verdict was not unanimous, so a different jury might have reached a different outcome.

Reporter: “Do you think the defendants/social platforms will have to reconfigure their core offerings? And if so, what will it take?”

Me: The legislation being passed around the country and the globe are already going to require major changes to social media. It remains to be seen if the social media services can find reasons to overcome the legislative requirements. If not, the legislatures will keep mandating changes to control social media publication decisions in every respect. For now, it’s not clear yet how social media services will have to change to satisfy the large number of lawsuits and legislative orders they are facing. A reminder that any configuration changes don’t just affect the victims, they affect everyone. As a result, social media users who find the services beneficial and helpful today might anticipate that the services will become less so over time.

The post Comments on the Jury Verdict in the Los Angeles Social Media Addiction Bellwether Trial (Expanded/Updated) appeared first on Technology & Marketing Law Blog.

The decision reaches the right outcome. It has been unconscionable that copyright owners keep trying to hold Internet access providers liable for the acts of their subscribers. I hope this decision puts an end to that litigation genre.

Thomas’ opinion potentially makes major changes to venerable common law doctrines. It seemingly overrides the decades-old Gershwin standards for contributory copyright infringement and instead offers two ways for copyright owners to establish contributory copyright infringement: (1) inducement, or (2) the service is “tailored” to infringement. The “tailored to infringement” standard is brand-new; Thomas grabbed it from Ginsburg’s non-dispositive concurrence in the Grokster case. Because “tailored to infringement” has never been the governing standard before, there will be substantial confusion in the lower courts trying to figure out how to apply it.

Thomas’ opinion defines “tailored to infringement” as “not capable of substantial or commercially significant noninfringing uses.” This resurrects the Sony v. Universal standard for contributory infringement from over 40 years ago, which largely got put on hold after the Grokster case 20 years ago. Because it’s not been well-explored since 2006, we’re not sure what this phrase means in the modern Internet age. On balance, the old Sony standard should favor future defendants, but copyright owners will invest a lot of money to try to water it down and undermine it.

I do note the irony that Sony created the defense-favorable legal standard in 1984 that is now being cited against it in 2026. As the Bible verse goes, “You reap what you sow.”

My blog post on the 2024 Fourth Circuit opinion (now overruled).

The post Quick Comments on the SCOTUS Cox v. Sony Ruling appeared first on Technology & Marketing Law Blog.

Executive Lens LLC v. Rapkin, 2026 WL 776965 (N.D. Cal. March 19, 2026)

“Plaintiff is the sole owner of the copyrights in the videos published on the YouTube channels ‘Denver Metro Audits’ and ‘Denver Metro Audits 2.0.'” This is my second time blogging about those channels.

A pseudonymous user, “The Exposer,” posted at least 31 videos to YouTube allegedly containing copyrighted material from the plaintiff. (The “Exposer” moniker made me think of the stage names “The Crusher” and “The Masked Terror” from Bunny Hugged).

The plaintiff sent takedown notices targeting 27 of The Exposer’s videos. YouTube removed 17 videos. (The Exposer made 13 of the 14 other videos private). Allegedly, “At least eight of the 17 videos contained no commentary of any kind.” Rapkin, representing The Exposer, filed counternotifications for the 17 removed videos, allegedly without actually reviewing the videos. The plaintiff filed a copyright infringement lawsuit to block YouTube’s reinstatement of the counternoticed videos. The plaintiff also claims Rapkin’s counternotices violated 512(f). The court denied Rapkin’s motion to dismiss.

Damages

Rapkin argued that the plaintiff didn’t suffer any damages if YouTube never reinstated the videos. The court says the threat of reinstatement is good enough to support 512(f) damages. The court distinguishes Amaretto v. Ozimals, the old virtual horses v. bunnies case:

Amaretto limited liability to misrepresentations in a takedown notice that led to an actual takedown of a video, not to misrepresentations in a counter notification that led to reinstatement. This distinction is important because takedown notices prompt the service provider to “expeditiously … remove” the material, while counter notifications force the user into time-sensitive litigation to prevent reinstatement

Is there really a material difference between takedown notices and counternotices? Takedown notices have major implications. The legal incentives impel services to remove the content, the removal occurs without any warning to the uploader, and the uploader may have to go to court to rectify the removal. (Services aren’t legally compelled to honor 512(g) counternotifications). So both takedown notices and counternotices are powerful legal tools that (by design) cause the disposition of important legal rights extrajudicially. It would have been helpful for the court to articulate a more detailed explanation about why the shifted leverage from a counternotice is more significant than the shifted leverage from the initial takedown notice, and why that should matter to the 512(f) analysis. This might be a good student paper topic.

Knowing Misrepresentation

512(f) requires that the takedown/counter notice sender has “knowledge” that the notice contains a material misrepresentation. For over 20 years, courts have applied that scienter standard exactingly. Per Rossi, actual knowledge was required, and it was measured subjectively. Increasingly, courts have been open to loosening that subjective standard to include “willful blindness.” That leads to passages like this:

Plaintiff alleges that Rapkin withheld the Exposer’s identity and that the Exposer “publicly boasted about hiding behind Attorney Rapkin and a purported corporate entity to evade accountability, taunting Plaintiff that his identity would never be discovered and he therefore could not be held liable.” Drawing all reasonable inferences in favor of Plaintiff, these allegations support a reasonable inference that Rapkin knew that the Exposer’s subject videos did not contain commentary and was therefore not subject to fair use. Further, Plaintiff sufficiently alleged that Rapkin took deliberate actions to avoid confirming that the subject videos did not contain commentary by not reviewing the videos.

And this is how this 512(f) case survives a motion to dismiss.

Yet, copyright owners send enormous volumes of robo-takedown notices all the time without actually reviewing the subject works, and Rossi says their ignorance is not a problem at all. Did the court bend the scienter standard because it was a counternotification?

The court doesn’t address the problems with potentially imposing potential 512(f) liability on the uploader’s attorney instead of exclusively on the uploader. Among other things, this potentially turns attorney-client communications into discoverable evidence. On the other hand, anyone sending a takedown or putback notice should be doing their homework before submitting the notice! If collapsing the identity of the notice sender means that more copyright enforcement agents/lawyers fear their personal legal liability when zinging 512(c)(3) takedown notices around the Internet on behalf of clients, so be it.

And yet, as I wrote about in my first-hand interactions with Scribd’s defective DMCA procedures, it’s stressful to submit a 512(g) putback notice. In doing so, the submitter must accept jurisdiction in a potentially unfriendly venue, dares the takedown notice sender to initiate a copyright infringement lawsuit (to veto reinstatement), and invites a 512(f) lawsuit–per this case, potentially with a higher risk of 512(f) liability than the initial takedown notice sender faced. I was so confident in my Scribd upload that I submitted the 512(g) putback notice anyway. However, most people who understand the risks of putback notices might rationally acquiesce to bogus takedowns to reduce their legal exposure. This is another example of how 512(c)’s notice-and-takedown mechanisms may not be properly fine-tuned to reflect the power dynamics.

Doeman Music Group Media and Photography LLC v. George, 2026 WL 789495 (S.D.N.Y. Jan. 8, 2026). The complaint.

This is a default judgment, which is the primary way that plaintiffs win 512(f) cases. Even so, this plaintiff blows the layup and gets a small fraction of its requested relief.

[Note: this is a magistrate judge’s recommendation, but because the plaintiff delayed serving it on the defendant, the supervising judge has not yet reviewed it.]

I previously summarized this case:

The case involves George’s 3 second vocal contribution to a song. George was paid for her contribution, got named in the song credits, and allegedly operated under the direction of the song creator (but apparently without a license?). George later demanded that her name be removed from the credits. When rebuffed, George sent takedown notices to various services, claiming copyright ownership of the song. (Wow, this is a deja vu of Innocence of Muslims). The record label sued George for 512(f).

In my prior post, I raised questions about whether George ever got properly served. Inadequate service may be a contributing factor to the default judgment.

Much of the most recent opinion explains how the plaintiff made unsupported evidentiary claims about its damages. The court awards $360.63 of lost streaming revenue from the takedown, calculated as:

(Plaintiff’s total [Spotify] streams to date on a comparable song less Scary Movie’s total streams to date) * (an estimated $0.0018849628 per stream) = $160.63. Plaintiff said that if one considers other streaming platforms, the additional lost streaming revenue for Scary Movie would be $200.00

The calculation is precise to the penny on the lost Spotify revenues from the song, even though the formula is based on streams for a “comparable song” (whatever that means). Yet, the other platforms’ lost revenue is just a round $200 with no supporting data at all. The court lets that obvious discrepancy go.

[The calculation that Spotify pays $0.0018849628 per stream seemed a little low and obviously implied faux precise (accurate to 10 digits????)].

The plaintiff also sought lost live performance bookings ($20k) and his costs of reuploading the songs (allegedly 250 hours at $130/hr). The court refuses both requests because they conflate the identity between the artist and the label.

The court awards the following costs:

• $2,500.00 in out-of-pocket fees paid to DMCA counsel
• $400.00 in pre-filing services in connection with George’s Take-Down ($150.00 “for assistance with effectuating a counternotice” to George’s Take-Downs and $250.00 to consult “another private attorney” about George’s Take-Downs <== both of these sounded a little fishy)
• $1,202.00 in taxable costs ($800 process server and $402 complaint filing fee)

The plaintiff then requested over $57k of attorneys’ fees: “Grimm billed 52.4 hours on this case at an hourly rate of $450; Keenen billed 72.9 hours of work on this case at an hourly rate of $400.” The court haircut the billable rates to $400 for Grimm and $300 for Keenan and haircut the hours to 42.5 total to exclude time spent working on other defendants.

In total, the court awards about $19k: $14.6k of attorneys’ fees, $4.1k of costs, and the remainder the lost streaming revenues. Given that the plaintiff made an unopposed ask of about $120k of damages and attorneys’ fees, getting only about 1/6 that amount probably feels a little disappointing and embarrassing. And it’s also likely the $19k is uncollectible. Still, a 512(f) damages award of any amount, even in a default judgment, is a rare outcome, so…good job I guess?

BONUS: Pandvil LLC v. Pino, 2026 WL 820817 (D. Ariz. March 25, 2026). The defendant used 512(c)(3) takedown notices to (improperly) remove a lucrative Fortnite island. In response to the 512(f) claim, the court awards $501k in damages plus $10k fees and costs. This would be a big deal if it weren’t a default judgment where the court accepted the plaintiff’s arguments without challenge.

BONUS 2: Charles F. Wachendorfer Consulting Group LLC v. Think2Perform Exam Services Co., 2026 WL 836902 (D. Minn. March 26, 2026). “Courts have held that tortious-interference claims predicated solely on false DMCA takedown notices are preempted by the DMCA….the heart of Wachendorfer’s claim for tortious interference with economic advantage is the false takedown notice. If the notice has caused injury to Wachendorfer—or if Wachendorfer suffers injury in the future caused by the notice—then Wachendorfer can seek damages and other remedies under the DMCA.”

Prior Posts on Section 512(f)

* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices? appeared first on Technology & Marketing Law Blog.