Ex-Lawmakers & Many Others Submit Cox v. Sony Amicus Briefs

The Supreme Court courtroom. Photo Credit: Phil Roeder

Amicus briefs are continuing to pour in ahead of the high-stakes Cox v. Sony Music Supreme Court arguments. Now, SoundExchange, A2IM, former members of Congress, and others have fired off filings of their own.

Technically, those briefs are all dated October 22nd – though they weren’t live in the docket at the time of our coverage yesterday afternoon. That’s probably just as well; with each document spanning 30 or so pages, we broke down the many comments that were live, including from the RIAA, the NMPA, and several different entities.

Shifting the focus to the newer submissions, the shared position of SoundExchange, A2IM, AFM, and SAG-AFTRA won’t come as a surprise. Off the bat, they stressed their clear-cut interest in curbing (and, when necessary, seeking relief for) copyright infringement.

And the way they see things, adopting Cox’s “unduly narrow standard for contributory infringement would violate a half century of case law and sound policy that is critical to maintaining the economic viability and artistic integrity of the artist and music community.”

Moreover, the ISP’s “myopic view of contributory infringement would spell disaster for the music community, as it would deprive musicians and those who represent them of the only feasible means of challenging mass online infringement,” according to the amici.

“It would also render the DMCA essentially useless,” they weighed in, “as ISPs would have no incentive to seek its safe harbors when they can infringe with impunity as long as they protest that their purpose was never affirmatively to ‘induce’ infringement.”

Likewise in the labels’ corner are a number of copyright professors and scholars, who didn’t hesitate to take aim at Cox’s warnings about being compelled to cut off some subscribers’ internet access altogether due to secondary infringement liability.

“Cox’s policy arguments about the importance of internet access are similarly misplaced,” they summed up. “Congress itself contemplated and endorsed the termination of internet access for repeat infringers in” the DMCA.

Furthermore, “the evidence demonstrated that Cox’s failure to terminate repeat infringers had nothing to do with concerns about the social importance of internet access and everything to do with profit maximization.”

What about the lawmakers’ brief? Well, signatories including not only former members of Congress, but multiple former Copyright Office heads, tackled the case’s questions mainly from the precedent perspective.

“Cox’s novel standard has never been the law, would negate Congress’s purpose in enacting the DMCA, and would eviscerate the ability of copyright owners to address online infringement of their works,” they wrote, proceeding to ask the Supreme Court not to “abrogate a deeply rooted rule of secondary copyright liability that serves as a foundational principle of the Copyright Act and DMCA.”

Besides underscoring their own interests in minimizing infringement, the Association of American Publishers and the News/Media Alliance took things a step further by arguing that vacating could fuel rightsholder consequences well beyond the internet-provider space.

“Eliminating or narrowing the material contribution doctrine would also have implications far beyond internet service providers and their obligations to terminate repeat infringers,” they indicated.

“Online platforms, including social media apps and e-commerce marketplaces, would be emboldened to abandon their efforts to comply with the DMCA’s safe harbor regime, honor takedown requests, and halt rampant infringement to which they are contributing,” they continued.

Finally, the National Center on Sexual Exploitation (NCOSE) in a brief pushed back against Cox’s alleged attempt “to make this case about…a blanket rule that internet platforms or services (of any kind) can never be held liable (in any context) for so-called ‘inaction,’ e.g., refusing to terminate a user for engaging in known illicit activities.”

Notwithstanding this rally behind the labels’ position, various organizations, different ISPs, tech companies, and the government previously voiced support for Team Cox. Now, we’re just five weeks and change out from the December 1st Cox v. Sony Music arguments.