No. 24-171
`
`IN THE
`Supreme Court of the United States
`
`COX COMMUNICATIONS, INC. AND COXCOM, LLC,
` Petitioners,
`—v.—
`SONY MUSIC ENTERTAINMENT, ET AL.,
` Respondents.
`
`ON WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`══════════════════════════════════
`BRIEF OF AMICUS CURIAE
`AMERICAN INTELLECTUAL PROPERTY LAW
`ASSOCIATION IN SUPPORT OF NEITHER PARTY
`══════════════════════════════════
`
`Salvatore Anastasi
`President - Elect
`AMERICAN INTELLECTUAL
`PROPERTY LAW ASSOCIATION
`1400 Crystal Drive,
`Suite 600
`Arlington, VA 22202
`(703) 415-0780
`
`Nancy J. Mertzel
`Counsel of Record
`MERTZEL LAW PLLC
`1204 Broadway, 4th Floor
`New York, New York 10001
`(646) 965-6900
`nancy@mertzel-law.com
`Attorneys for Amicus Curiae
`American Intellectual Property Law Association
`
`
`
`
`
`
`
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`i
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`TABLE OF CONTENTS
`STATEMENT OF INTEREST OF
`AMICUS CURIAE ........................................... 1
`SUMMARY OF THE ARGUMENT ....................... 1
`ARGUMENT .......................................................... 3
`I. THE FOURTH CIRCUIT DID NOT
`ERR IN ADOPTING A MATERIAL
`CONTRIBUTION STANDARD FOR
`CONTRIBUTORY LIABILITY ....................... 3
`A. Material Contribution Is a Well-
`Established and Necessary Means
`of Finding Contributory Copyright
`Infringement ............................................. 3
`B. Continuing to Provide Services to
`Repeat Infringers May, in
`Appropriate Circumstances,
`Satisfy the Material Contribution
`Element of Contributory
`Copyright Infringement ............................ 6
`II. THE FOURTH CIRCUIT’S
`WILLFULNESS STANDARD
`CORRECTLY CONSIDERED
`KNOWLEDGE OF ANOTHER’S
`DIRECT INFRINGEMENT .......................... 13
`CONCLUSION ..................................................... 15
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`ii
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`TABLE OF AUTHORITIES
`Page(s)
`Cases
`A&M Recs., Inc. v. Napster, Inc.,
`239 F.3d 1004 (9th Cir. 2001) ........................... 6, 12
`BMG Rts. Mgmt. (US) LLC v.
`Cox Commc'ns, Inc.,
`881 F.3d 293 (4th Cir. 2018) ............. 5, 7, 10, 11, 13
`Fonovisa, Inc. v. Cherry Auction, Inc.,
`76 F.3d 259 (9th Cir. 1996) ..................................... 6
`Gershwin Publ'g. Corp. v.
`Columbia Artists Mgmt., Inc.,
`443 F.2d 1159, 1162 (2d Cir. 1971) .................. 3, 14
`Henry v. A.B. Dick Co.,
`224 U.S. 1 (1912) ..................................................... 5
`Metro-Goldwyn-Mayer Studios Inc. v.
`Grokster, Ltd.,
`545 U.S. 913 (2005) ............................. 4, 5, 9, 10, 11
`Perfect 10, Inc. v. Amazon.com, Inc.,
`508 F.3d 1146 (9th Cir. 2007) ..................... 4, 10, 12
`Safeco Ins. Co. of Am. v. Burr,
`551 U.S. 47 (2007) ................................................. 15
`Sony Corp. of Am. v.
`Universal City Studios, Inc.,
` 464 U.S. 417 (1984) ................................................ 9
`Sony Music Ent. v. Cox Commc'ns, Inc.,
`93 F.4th 222 (4th Cir. 2024) ....................... 7, 10, 15
`
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`iii
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`Twitter, Inc. v. Taamneh,
` 598 U.S. 471 (2023) ................................................ 5
`UMG Recordings, Inc. v. Grande Commc'ns
`Networks, L.L.C.,
`118 F.4th 697 (5th Cir. 2024) ............................. 4, 5
`
`Statutes
`17 U.S.C. § 512 ....................................................... 7, 8
`
`Other Authorities
`Letter from Mark L. Whitaker to Karyn A.
`Temple Claggett (February 21, 2017),
`https://perma.cc/ 2PPL-DNGA ............................ 8
`U.S. Copyright Office, Section 512 of Title 17,
`A Report of the Register of Copyrights (May
`21, 2020), https://www.copyright.gov/
`policy/section512/section-512-full-
`report.pdf ................................................................. 8
`
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`1
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`
`STATEMENT OF INTEREST OF
`AMICUS CURIAE
`The American Intellectual Property Law
`Association (AIPLA) is a national bar association
`representing the interests of approximately 6,500
`members engaged in private and corporate practice,
`government service, and academia. AIPLA’s
`members represent a diverse spectrum of individuals,
`companies, and institutions involved directly or
`indirectly in the practice of patent, trademark,
`copyright, and unfair competition law, as well as other
`fields of law affecting intellectual property. Our
`members represent both owners and users of
`intellectual property.
`1 AIPLA’s mission includes
`providing courts with objective analyses to promote an
`intellectual property system that stimulates and
`rewards invention, creativity, and investment while
`accommodating the public’s interest in healthy
`competition, reasonable costs, and basic fairness.
`AIPLA has no stake in any of the parties to this
`litigation or in the result of the case. AIPLA’s only
`interest is in seeking correct and consistent
`interpretation of the law as it relates to intellectual
`property issues.
`SUMMARY OF THE ARGUMENT
`The Fourth Circuit correctly held that
`materially contributing to copyright infringement by
`
`1 Pursuant to Rule 37.6, no counsel for a party authored this brief
`in whole or in part, and no such counsel or party made a
`monetary contribution intended to fund the preparation or
`submission of the brief. No person or entity other than the
`amicus curiae, its members, or its counsel, made a monetary
`contribution intended to fund its preparation or submission.
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`2
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`another can give rise to secondary liability. Decisions
`on secondary liability do not provide bright lines or
`tests for such liability. In stead, courts review the
`facts of each case to ascertain whether a party’s
`conduct rises to the level for which liability should be
`imposed. The material contribution prong of
`contributory liability is necessary to provide courts
`with the flexibility they need to determine culpability,
`which can be difficult in cases involving services or
`products capable of both infringing and noninfringing
`uses. The elimination of this material contribution
`prong would mean that parties could recklessly
`disregard actual knowledge of repeat infringing
`activity they are in the best position to prevent,
`reaping profits to the detriment of copyright holders.
`Additionally, the Fourt Circuit did not err in
`approving the jury instruction, which provided,
`among other options, that Cox could be found willful
`based on knowledge of its subscribers’ infringement.
`The instruction was not improper as it enabled the
`jury to consider whether continuing to provide
`services to subscribers Cox knew were repeat
`infringers constituted willful infringement.
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`3
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`
`ARGUMENT
`I. THE FOURTH CIRCUIT DID NOT
`ERR IN ADOPTING A MATERIAL
`CONTRIBUTION STANDARD FOR
`CONTRIBUTORY LIABILITY
`A. Material Contribution Is a Well-
`Established and Necessary Means of
`Finding Contributory Copyright
`Infringement
`The material contribution test is a well-
`established standard for determining whether a party
`is contributorily liable for copyright infringement by
`another. Retaining that test is essential for courts to
`have the flexibility to determine when a party should
`be held legally responsible for infringement by
`another. The material contribution test complies with
`Supreme Court precedent, is consistent with appellate
`caselaw, and provides dist rict courts the necessary
`latitude to find contributory infringement in
`appropriate cases.
`Over fifty years ago, the Second Circuit held
`that a party may be liable for contributory liability
`when it “induces, causes or materially contributes to
`the infringing conduct of another.”
`See Gershwin
`Publ'g. Corp. v. Columbia Artists Mgmt., Inc. , 443
`F.2d 1159, 1162 (2d Cir. 1971). Under the Gershwin
`formulation, contributory infringement can be found
`in three ways: inducing, causing, or materially
`contributing to infringing conduct by another party.
`The material contribution test is a distinct and critical
`prong of
`Gershwin’s three-part formulation.
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`4
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`The Fourth Circuit’s application of the material
`contribution analysis is consistent with this Court’s
`holding in Metro-Goldwyn-Mayer Studios Inc. v.
`Grokster, Ltd., 545 U.S. 913 (2005). There, this Court
`cited Gershwin in support of its holding that “[o]ne
`infringes contributorily by intentionally inducing or
`encouraging direct infringement … .”
`Id. at 930.
`Multiple appellate courts have found that Grokster
`did not eliminate the material contribution test for
`contributory liability under common law principles.
`For example, the Ninth Circuit held that “the
`Supreme Court in Grokster did not suggest that a
`court must find inducement in order to impose
`contributory liability under common law principles.
`Perfect 10, Inc. v. Amazon.com, Inc. , 508 F.3d 1146,
`n.11 (9th Cir. 2007). Similarly, the Fifth Circuit
`expressly rejected Grande’s argument that knowingly
`providing material contribution to infringement is an
`inadequate basis for finding contributory copyright
`liability. UMG Recordings, Inc. v. Grande Commc'ns
`Networks, L.L.C., 118 F.4th 697, 713 (5th Cir. 2024)
`(holding that “ Grokster endorsed the broader
`common-law theories of contributory liability
`articulated in Gershwin and other authorities; it
`didn’t constrict them.”).
`Indeed, Grokster expressly left open the
`possibility of finding contributory infringement in a
`case involving a product capable of substantial
`noninfringing use based on “evidence of intent” and “a
`failure to take affirmative steps to prevent
`infringement.”
`Grokster, n. 12 (holding that “ in the
`absence of other evidence of intent, a court would be
`unable to find contributory liability merely based on a
`failure to take affirmative steps to prevent
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`infringement, if the device was capable of substantial
`noninfringing uses.”) (emphasis added). The material
`contribution prong is necessary because it provides
`courts the flexibility to evaluate the very conduct
`Grokster contemplated: whether a party’s continued
`provision of services to kn own infringers is sufficient
`evidence of its intent to materially contribute to their
`infringement.
`The material contribution test is also consistent
`with this Court’s century-old holding that the sale of
`ink to a specific person with knowledge that the buyer
`would use the ink to infringe, constituted contributory
`patent infringement – even though the ink had other
`noninfringing purposes.
`See Henry v. A.B. Dick Co. ,
`224 U.S. 1, 12 (1912), overruled on other grounds by
`Motion Picture Pats. Co. v. Universal Film Mfg. Co. ,
`243 U.S. 502 (1917). As the Fourth Circuit explained,
`“because the defendants sold the ink ‘with the
`expectation that it would be used’ to infringe, ‘the
`purpose and intent that it would be so used’ could be
`presumed.”
` BMG Rts. Mgmt. (US) LLC v. Cox
`Commc'ns, Inc., 881 F.3d 293, 307 (4th Cir. 2018).2
`
`2 The material contribution test is not at odds with this Court’s
`ruling in Twitter, Inc. v. Taamneh , 598 U.S. 471 (2023). The
`common law standards for aiding and abetting criminal activity
`and contributory liability fo r copyright infringement are
`different. In addition, material contribution copyright
`infringement cases may present a closer nexus than Twitter’s
`services and the terrorist attack at issue in Twitter. See UMG
`Recordings, Inc., 118 F.4th at 714-715 (holding Twitter did not
`foreclose material contribution liability by internet service
`provider).
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`6
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`Additionally, the Fourth Circuit ruling is
`consistent with longstanding appellate court decisions
`on contributory liability. For example, the Ninth
`Circuit found that allegations of furnishing the
`location or instrumentalities of a swap meet with
`knowledge that the vendors were selling counterfeit
`goods stated a claim for contributory infringement.
`Fonovisa, Inc. v. Cherry Auction, Inc. , 76 F.3d 259,
`264 (9th Cir. 1996) (“it would be difficult for the
`infringing activity to take place in the massive
`quantities alleged without the support services”).
`Similarly, the Ninth Circuit affirmed a district court’s
`holding that Napster “materially contributes to direct
`infringement” by providing “support services” to
`Napster users.
`A&M Recs., Inc. v. Napster, Inc. , 239
`F.3d 1004, 1022 (9th Cir. 2001).
`Materially contributing to infringement is
`distinct from inducing or encouraging infringement.
`The material contribution test should be retained
`because it affords courts flexibility to consider the
`degree to which a defendant’s acts and omissions
`contributed to the infringement of another and
`determine whether the conduct sufficiently
`contributes to the infringement such that the
`defendant should be held contributorily liable.
`B. Continuing to Provide Services to
`Repeat Infringers May, in
`Appropriate Circumstances, Satisfy
`the Material Contribution Element of
`Contributory Copyright Infringement
`The Fourth Circuit did not err in adopting a
`standard of contributory copyright infringement that
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`7
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`permits finding a party secondarily liable for a
`material contribution to copyright infringement by
`others. As noted above, determining whether a party
`has materially contributed to another’s direct
`infringement is a fact-specific inquiry. Here, the jury
`found that Cox’s continued provision of internet
`services to customers it kn ew were repeat infringers
`constituted material contribution.
`As the Fourth Circuit noted, rather than adopt
`a reasonable policy to terminate repeat infringers and
`enjoy the safe harbors Congress afforded in the
`Digital Millenium Copyright Act (DMCA), 17 U.S.C. §
`512, Cox did not consider a subscriber for termination
`until after the thirteenth notice of infringement,
`capped the number of notices it would process from
`any copyright holder in one day, limited the number
`of account suspensions per day, and restarted the
`strike count for subscribers once it had terminated
`and reinstated them. Sony Music Ent. v. Cox
`Commc'ns, Inc., 93 F.4th 222, 228 (4 th Cir. 2024).
`Accordingly, in a previous decision in a separate case
`that was not appealed, the Fourth Circuit held that
`Cox did not qualify for the safe harbor provisions
`available to it under the DMCA. BMG Rights
`Management (US) LLC, 881 F.3d at 301–305.
`The DMCA contains a threshold standard of
`behavior determined by Congress to be sufficient to
`shield internet service providers from damages for
`contributory liability. Failing to meet that standard
`does not in and of itself constitute grounds for finding
`secondary liability, and qualification for the DMCA
`safe harbor should be analyzed separately from
`contributory liability. Nevertheless, once a party is
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`deemed ineligible for the sa fe harbors, a fact finder
`may find contributory liability. The Fourth Circuit
`test appropriately provid es district courts the
`flexibility needed to evaluate the specifics of each
`case, including the nature and quantity of the
`infringement, and a party’s response to repeated
`notices of infringement.
`Moreover, the DMCA threshold is a minimum
`that, in the view of many rightsholders, does not
`adequately deter infringement. See U.S. Copyright
`Office, Section 512 of Title 17, A Report of the Register
`of Copyrights (May 21, 2020) at 77-83,
`https://www.copyright.gov/ policy/section512/section-
`512-full-report.pdf (summarizing rightsholders’
`concerns and concluding that “[t]he sharp divergence
`in the assessments of section 512 by OSPs and
`copyright owners indicates that the statute in practice
`is not achieving the balance Congress originally
`intended.”). As AIPLA stated in comments to the
`Copyright Office, “content creators appear to be
`significantly less satisfied” with the DMCA than
`internet service providers. See Letter from Mark L.
`Whitaker to Karyn A. Temple Claggett (February 21,
`2017), https://perma.cc/ 2PPL-DNGA (noting that
`the DMCA could be further refined to more effectively
`deter repeat infringement) . In appropriate cases,
`failure to meet that minimum standard may subject a
`service provider to liability for contributory
`infringement. Here, Cox left open the potential for a
`fact finder to determine that its decision to continue
`providing internet service to known infringers
`constitutes contributory liability.
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`This Court’s decision in Sony Corp. of Am. v.
`Universal City Studios, Inc., 464 U.S. 417 (1984) does
`not dictate a different result. The Sony ruling
`declined to find contributory copyright infringement
`where Sony sold video cassette recorders (VCRs) that
`customers used to tape copyrighted programs.
`Although
`Sony emphasized the fact that the VCRs
`were capable of “commercially significant
`noninfringing uses,” the Sony ruling does not mean
`that “whenever a product is capable of a substantial
`lawful use, the producer can never be held
`contributorily liable for third parties’ infringing use of
`it.” Grokster at 933-34. As th is Court explained,
`“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.” Id. (emphasis added).
`Here, the question is not whether Cox should be
`presumed to have an intent to cause infringement
`solely by designing or selling internet services to the
`public. The question is whether the jury had
`sufficient evidence to find Cox materially contributed
`to infringement by knowingly continuing to provide
`internet services to repeat infringers.
`As noted above,
`Grokster made clear that
`selling a service with a noninfringing use does not
`preclude liability for contributory infringement. Even
`if Cox’s services are wide ly used for legitimate,
`noninfringing purposes, th at does not necessarily
`preclude liability for continuing to provide services to
`known infringers. As the Fourth Circuit noted:
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`10
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`We rejected that argument in BMG: “In fact,
`providing a product with ‘substantial non-
`infringing uses’ can constitute a material
`contribution to copyright infringement.” 881
`F.3d at 306. As we explained there, “Grokster
`makes clear 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. Accordingly, Cox’s concern
`that businesses “would be automatically liable
`for providing any product or service with
`knowledge that some small set of customers
`may use it, in part, to infringe” is misplaced.
`Opening Br. 45.
`Sony Music Entertainment, 93
`F.4th at 236.
`Notably, Cox did not appeal the Fourth
`Circuit’s earlier ruling in BMG, which expressly
`rejected that argument:
`In fact, providing a product with “substantial
`non-infringing uses” can constitute a material
`contribution to copyright infringement. See,
`e.g., Perfect 10, Inc. v. Amazon.com, Inc. , 508
`F.3d 1146, 1172 (9th Cir. 2007) (holding that
`Google's image search engine “substantially
`assists websites to distribute their infringing
`copies” of copyrighted images, and thus
`constitutes a material contribution, even
`though “Google’s assistance is available to all
`websites, not just infringing ones”).
`Grokster
`makes clear that what matters is not simply
`whether the product has some or even many
`non-infringing uses, but whether the product is
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`distributed with the intent to cause copyright
`infringement. See Grokster, 545 U.S. at 934,
`125 S.Ct. 2764 (“ Sony’s rule limits imputing
`culpable intent as a matter of law from the
`characteristics or uses of a distributed
`product.” (emphasis added) ). BMG Rights
`Management (US) LLC, 881 F.3d at 306–07
`Here, Cox argues that it is not liable because it
`merely provides internet service and doing so does not
`constitute “purposeful” misconduct. Pet. 2. However,
`that is not the applicable test. The Grokster decision
`did not identify a minimum threshold for the type of
`“purposeful” misconduct necessary to find
`contributory infringement. To the contrary, in
`Grokster, this Court reversed the Ninth Circuit
`because it incorrectly held that distributing a
`commercial product with substantial noninfringing
`uses could not give rise to contributory liability
`despite an actual purpose to cause infringement,
`absent “specific knowledge of the infringement at a
`time which they contributed to the infringement, and
`fail[ure] to act upon that information.”
`Grokster at
`934. The Fourth Circuit test correctly permitted the
`jury to consider whether Cox had specific knowledge
`of infringement by its users, at a time which it
`contributed to the infringement, and failed to act upon
`that information. Although this Court found the
`Ninth Circuit standard too high, it is certainly
`permissible to allow a jury to consider whether Cox’s
`conduct met that standard in evaluating contributory
`liability.
`Cox’s argument that it cannot be liable for
`secondary infringement because its conduct is
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`“passive” in character, Pet. 24, 26, is also without
`merit. A fact finder could reasonably conclude that
`continuing to provide services to a known infringer is
`not merely passive conduct; it is actively providing
`services that enable that infringer to continue to
`infringe in exchange for monetary compensation. As
`the Ninth Circuit held in
`Perfect 10 Inc . v. Amazon,
`“Google could be held contributorily liable if it had
`knowledge that infringing Perfect 10 images were
`available using its search engine, could take simple
`measure to prevent further damage to Perfect 10’s
`copyrighted works, and faile d to take such steps.”
`Perfect 10, Inc. v. Amazon.com, Inc. , 508 F.3d 1146,
`1172 (9th Cir. 2007).3
`Finally, Cox and the government’s concern that
`some of Cox’s subscribers are large institutions, such
`as hospitals and universities, is something that
`district courts can cons ider in evaluating a
`defendant’s full range of conduct as part of their fact-
`specific inquiry under the material contribution test.
`Whether such subscriber accounts must be
`
`3 Whether the “simple measures” test is limited to circumstances
`where a platform or website knows its own service provides ready
`access to a specific infringing work is immaterial here. The point
`is that a reasonable jury coul d find Cox liable for material
`contribution when it had actual knowledge of specific customers
`who were repeatedly engaging in copyright infringement and
`nevertheless continued to provide service to them to increase its
`revenue. Courts have found simi lar behavior meets the test for
`secondary liability. See, e.g., A&M Recs., Inc., 239 F.3d at 1022
`(finding contributory liability where record demonstrated that
`Napster had “actual knowledge that specific infringing material
`is available using its system, that it could block access to the
`system by suppliers of the infringing material, and that it failed
`to remove the material.”).
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`13
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`terminated to qualify for a reasonable repeat infringer
`termination policy is not presently before this Court.
`II. THE FOURTH CIRCUIT’S
`WILLFULNESS STANDARD
`CORRECTLY CONSIDERED
`KNOWLEDGE OF ANOTHER’S DIRECT
`INFRINGEMENT
`Cox argues that the Fourth Circuit erred in
`failing to reverse a jury instruction which provided
`that Cox’s contributory infringement is considered
`willful if Sony establishes that “Cox had knowledge
`that its subscribers’ actions constituted infringement
`of Plaintiff’s copyrights.” Pet. 13. Cox’s argument is
`misplaced.
`To begin, the jury instruction provided three
`grounds for the jury to find willfulness, not one. The
`full jury instruction reads as follows: “Cox’s
`contributory or vicarious infringement is considered
`willful if Plaintiffs prove by a preponderance of the
`evidence that Cox had knowledge that its subscribers’
`actions constituted infringement of Plaintiffs’
`copyrights, acted with reckless disregard for the
`infringement of Plaintiffs’ copyrights, or was willfully
`blind to the infringement of Plaintiffs’ copyrights.”
`Opp. 6. The Fourth Circuit previously upheld this
`jury instruction.
`See BMG, 881 F.3d at 212-313 & n.
`7. The jury instruction permitted the jury to consider
`whether Cox’s contributory infringement was willful
`based on any one of those three grounds.
`Additionally, the jury instruction properly
`enabled the jury to consider whether by continuing to
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`provide service with know ledge of its subscribers’
`infringement, Cox’s infringement was willful.
`Contributory liability requires only “knowledge of the
`infringing activity.” Gershwin, 443 F.2d at 1162
`(emphasis added). It would be artificially limiting to
`confine evidence of willfulness to what Cox believed
`about its own activity. Give n sufficient evidence of
`infringement by customers, a reasonable fact finder
`could find a knowing decision to continue to provide
`services to those customers to be willful.
`The Fourth Circuit also found that the jury had
`before it ample evidence concerning Cox’s own
`behavior, which is not limited to its knowledge of its
`subscribers’ infringement:
`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. Sony presented extensive
`evidence about Cox’s increasingly liberal
`policies and procedures for responding to
`reported infringement on its network,
`which Sony characterized as ensuring that
`infringement would recur. And the jury
`reasonably could have interpreted internal
`Cox emails and chats as displaying
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`15
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`contempt for laws intended to curb online
`infringement. Sony Music Entertainment,
`93 F.4th at 236.
`Moreover, the jury instruction also permitted
`the jury to find willfulness based on reckless disregard
`of copyright holder’s rights. Such reckless behavior
`can give rise to a finding of willfulness.
`Safeco Ins.
`Co. of Am. v. Burr, 551 U.S. 47, 57 (2007) (holding that
`“where willfulness is a statutory condition of civil
`liability,” it generally covers not only … knowing
`violations of a standard, but reckless ones as well.”).
`Finally, the Fourth Circuit’s approval of the
`jury instruction on willful ness does not necessarily
`render all contributory infringers willful. Courts
`regularly find direct infringement without willfulness
`and can apply the same analysis regarding secondary
`liability. For example, a court might find an internet
`service provider liable for contributory infringement
`(but not willfully liable) where the provider made at
`least some effort to terminate repeat offenders.
`CONCLUSION
`For the foregoing reasons, AIPLA respectfully
`requests that the Court confirm that material
`contribution to infringement by another can give rise
`to secondary copyright liability; that continuing to
`provide services to repeat infringers may, in
`appropriate circumstances, constitute material
`contribution to contributory copyright infringement;
`and that the Fourth Circuit did not err in affirming a
`jury instruction that considered, among other things,
`Cox’s knowledge of its subscribers’ behavior.
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`16
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`Respectfully submitted,
`
`Salvatore Anastasi
`President - Elect
`AMERICAN INTELLECTUAL
`PROPERTY LAW ASSOCIATION
`1400 Crystal Drive,
`Suite 600
`Arlington, VA 22202
`(703) 415-0780
`
`September 5, 2025
`
`Nancy J. Mertzel
` Counsel of Record
`M
`ERTZEL LAW PLLC
`1204 Broadway,
`4th Floor
`New York, NY 10001
`(646) 965-6900
`nancy@mertzel-law.com
`
`ATTORNEYS FOR AMICUS CURIAE
`AMERICAN INTELLECTUAL PROPERTY
`LAW ASSOCIATION
`
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