National Music Publishers’ Association (NMPA) head David Israelite. Photo Credit: NMPA
Ahead of December arguments before the Supreme Court – and with billions of dollars on the line – the RIAA, the NMPA, and a number of others are firing off amicus briefs in Cox v. Sony Music.
At the time of this writing, the docket contained a total of six briefs dated October 22nd: From the above-mentioned entities as well as NSAI and SONA; the Association of Amicus Counsel; the Songwriters Guild of America, the Society of Composers and Lyricists, and others; the Copyright Alliance; the Motion Picture Association; and copyright law professor Bruce Boyden.
Furthermore, each of those briefs – which followed submissions from non-party ISPs, the U.S. government, and tech giants – was filed in support of the labels. And while it probably doesn’t need saying as a result, there’s a significant amount riding on the “exceptionally important” case – in terms of not just the massive jury verdict against Cox, but different ISP infringement actions and broader secondary liability questions.
Enter the amicus brief from the RIAA and the NMPA, which dedicated over 30 detail-oriented pages to recapping secondary liability’s history, the adjacent implementation of the DMCA amid “[t]he dawn of the internet,” and previous efforts (including the Copyright Alert System) to curb piracy.
Of course, these and related ideas all lead back to the central claim that “Cox’s approach demonstrates its knowing and willful contribution to its users’ infringement” – hence the perceived need for the Supreme Court to affirm the prior ruling in the labels’ favor.
Unsurprisingly, given the mountain of legal documents accompanying the courtroom confrontation, the RIAA and the NMPA also touched on several well-treaded topics. Nearly a decade after the appropriate employee left the company, Cox is still taking heat for an internal “F the DMCA!!!” message, allegedly one testament to a wider disregard for copyright protections.
“Cox developed an entire false front to give the impression that actions were being taken against known repeat infringers, when, in fact, Cox did virtually nothing. Cox’s disdain for the law is on full display in the ‘F the DMCA’ email,” they penned in part.
Needless to say, one could spill plenty of ink about the other briefs if so inclined. But in light of the years-old arguments at hand and the filing entities’ overlapping positions, summaries will suffice here.
According to the Association of Amicus Counsel, affirming “is not only appropriate but indeed necessary so that this Court can provide guidance to judicial decision-makers and to litigants and potential litigants in future copyright infringement cases involving issues of contributory infringement on the part of internet service providers.”
And per the shared brief from the Songwriters Guild of America and the Society of Composers and Lyricists, “[t]he doctrine of contributory infringement is essential to overcome practical obstacles to copyright enforcement in the online context.”
“Cox’s request is unsupported by this Court’s cases, runs contrary to Congress’s intent, and threatens profoundly destabilizing consequences for cooperative efforts by copyright owners and service providers to address the scourge of online copyright infringement,” the Motion Picture Association echoed.
Lastly, Boyden took the opportunity to dissect the case from the tort law perspective; “secondary infringement doctrine needs to return to its roots in tort law,” he wrote, beginning with the Supreme Court’s guiding “lower courts to look more to common law tort principles in future contributory infringement cases.”
