Touro Law Review BLOG

What’s at Stake

By Jorge Roig 

In a few days, the Supreme Court will hear oral argument in Cox Communications, Inc. v. Sony Music Entertainment, a case that asks whether an Internet service provider may be held secondarily liable for copyright infringement simply for continuing to provide service after receiving infringement notices. At first glance, it seems like a limited fight between sophisticated corporate entities over music piracy and subscription accounts. But a closer look reveals how an unfortunate holding could have broad implications on the architecture of speech in the digital age – and whether the marketplace of ideas can survive the collision between copyright power and expressive freedom.

For over forty years, the Court has insisted on a careful balance. In Sony Corp. v. Universal City Studios (1984) the Court held that technology with “substantial non-infringing uses” may not be strangled simply because some users commit infringement. Then, in MGM Studios v. Grokster (2005), the Court made clear that secondary liability requires intentional, affirmative steps taken to promote infringement, not merely awareness of wrongdoing. That standard reflects a constitutional equilibrium: protect creative incentives without suffocating innovation and access.

The Fourth Circuit’s rule in Cox breaks that equilibrium. Under its reasoning, knowledge alone, plus continued service, can support contributory liability. If that becomes the national rule,internet service providers (ISPs) – fearful of massive statutory damages – will act not as neutral conduits but as copyright sheriffs. And when sheriffs tremble, they over-police. They shut doors before asking questions. They choose safety over liberty.

What happens then? A chilling breeze sweeps through the creative ecosystem. Fair use – the doctrine that protects commentary, criticism, education, parody, and analysis – becomes a whisper rather than a shield. Already, creators on platforms such as YouTube report removals and demonetization of videos that are plainly transformative and critical. According to reports in Broadband Breakfast and Medium, in 2023, more than a billion copyright claims were processed on YouTube, the vast majority triggered automatically. Many creators admit they now self-censor to avoid losing their channels. That is how freedom erodes: silently, algorithmically, without headlines.

And what of the First Amendment? The Court reminded us in Packingham v. North Carolina (2017) that the Internet is today’s public square. But what good is a public square if the gatekeeper’s hand trembles at every knock on the door? What kind of democracy is built on silence born of fear?

Supporters of the Fourth Circuit’s approach argue that large ISPs profit from infringement and must bear responsibility. They invoke the ongoing reality of online piracy and the importance of copyright enforcement. Those concerns are real. But enforcement cannot come at the price of collapsing the fair-use space: a space necessary for new ideas to emerge and old ones to evolve. Copyright law was never intended to build a wall around culture. Copyright law was meant to incentivize and sustain a living, breathing creative society.

Will the Court preserve the balance struck in Grokster or surrender to a regime where intermediaries preemptively erase expression to protect themselves? One path leads to innovation, dissent, and a public square vibrant with remix, critique and transformation. The other to silence disguised as caution. 

The Supreme Court must reaffirm the requirement of intentional inducement and reject liability built on mere knowledge. If not, we may soon find that the lights in the public square dimmed without notice, that voices disappeared not by force but by frightened hands at the switch.

Jorge Roig is an associate professor of law at Touro Law Center. He used Artificial Intelligence (AI) to assist with writing this article.  

The Issues Before the Supreme Court and How It May Rule

By Howard Leib

On December 1, the Supreme Court will hear oral argument in Cox Communications, Inc. v. Sony Music Entertainment (Cox v. Sony). At issue is what showing a rights holder like Sony must make to prevail on a claim of copyright infringement against an internet service provider (ISP) like Cox.

This article will summarize the procedural history of Cox v. Sony, describe the legal issues before the Supreme Court, and offer a prediction on how the Court will rule. Of course, predicting how the Court will rule is a speculative exercise, especially in advance of oral argument. My best guess is that the Court will rule in favor of Cox.

Cox v. Sony in the Lower Courts

In 2019, numerous content creators, led by Sony, sued Cox in federal district court, alleging that numerous Cox subscribers repeatedly shared copyrighted songs, infringing on the rights of the copyright holders. The plaintiffs, through their agent MarkMonitor, provided Cox with more than 160,000 notices of infringement, with sufficient information for Cox to identify who these infringers were. Out of all those identified infringers, Cox terminated only 32 subscribers, however, allowing the rest to continue receiving internet services (and infringing).

Cox’s failure to take further action in response to the notices of infringement prompted plaintiffs to sue. The Digital Millennial Copyright Act (DMCA) includes a “safe harbor” provision that is intended to promote an ISP’s ability to provide services with minimal policing of its customers, so long as the ISP is responsive when notified of infringement. Before the trial, the district court ruled that Cox could not assert a defense based upon the Act’s safe harbor provisions.

Subsequently, plaintiffs presented their claims of vicarious and contributory infringement to a jury at trial. Cox was found liable for both vicarious and contributory copyright infringement for over 10,000 works, and plaintiffs were awarded $1 billion in statutory damages for willful infringement.

Cox appealed to the United States Court of Appeals for the Fourth Circuit, which reversed the vicarious liability verdict on the grounds that Cox did not directly profit from its subscribers’ infringing activities but upheld the contributory liability finding. Cox had adopted a thirteen- strike policy, with sanctions ranging from an email warning to a temporary suspension of a user’s account. The Fourth Circuit viewed Cox’s response as willful blindness to its subscribers’ infringing activities, constituting a material contribution to the subscribers’ infringement. Thus, the Fourth Circuit held that Cox was a contributory infringer.

The Fourth Circuit also vacated the damages award because the jury had not distinguished between which damages were for vicarious infringement and which for contributory infringement. Accordingly, the Fourth Circuit remanded the case back to the district court for a new trial on damages.

The Questions Before the Supreme Court

Though Cox obtained some relief from the Fourth Circuit, it nevertheless filed a petition for certiorari with the Supreme Court, which granted review on the following two questions:

The Court’s ruling in this case could drastically alter the statutory balance between ISP protection and ISP liability and with it the balance between ISPs and rights holders. Were the Court to rule in favor of Sony and the other plaintiffs, some or all of the following could occur:

(1) ISPs, in order to avoid potentially huge damages, as seen in this case, would likely adopt aggressive termination policies for users accused of repeated infringement. Such policies could have unintended consequences as entire households could find themselves without internet access due to infringing acts by a child. Businesses could be cut off from the internet for the unauthorized infringing activities of an employee. Further, ISPs would, at least at the outset, experience business uncertainty as the courts decide which policies regarding repeated infringers were legally sufficient and which were lacking.

(2) A ruling for either party could lead to pressure on Congress to revisit or clarify safe harbor rules generally. Such reconsideration could have implications beyond the DMCA. Section 230 of the Communications Act of 1934, see 47 USC § 230, which has been referred to as the “twenty-six words that created the internet,” provides limited federal immunity to providers of interactive computer services. This statute provides service providers such as X, Facebook, Instagram, and others protection against liability for its users’ postings. Section 230 has been a frequent target of the current President (although his Truth Social benefits greatly from this safe harbor); he has repeatedly called for its repeal.

(3) The second question approved for review addresses the definition of “willfulness” in the context of copyright damages. The Fourth Circuit’s definition of “willfulness” would allow for such a finding if an ISP knows that specific users are infringing and does not terminate their service. A finding of willfulness triggers the possibility of much higher statutory damages under the Copyright Act, potentially up to $150,000 per infringement. This amount contrasts with the maximum of $30,000 per non-willful infringement. Acceptance of the Fourth Circuit’s standard would certainly make ISPs more likely to implement stricter policing policies regarding their subscribers.

(4) In addition to repercussions regarding infringement, a decision upholding the Fourth Circuit’s ruling could have economic effects on both the ISP industry and even on non-infringing users. Requiring an ISP to more stringently police its customers could increase the company’s costs, which likely would be passed on to customers in the form of higher prices for internet access.

On the investor side, greater potential liability for ISPs would add more risk and uncertainty to the market, potentially driving down ISP stock prices. This could well be exacerbated by a ruling in favor of Sony. Furthermore, a decision in favor of rights holders could encourage them to become more aggressive in litigating infringement
claims.

A (Speculative) Prediction

This Supreme Court has been notoriously business friendly. In this case they are presented with two large and powerful business interests. This makes predicting an outcome more difficult. Indeed, predicting how the Court will rule in such a case may be a fool’s errand, especially in advance of a sense as to which way the wind is blowing at oral argument. Nonetheless, I will be brave.

I think it is likely that the Court will reject the Fourth Circuit’s ruling that actual knowledge coupled with a failure to cut off service is sufficient to find contributory liability. It is possible, however, that given the specific facts of this case, the Court could find that Cox’s “thirteen strikes and you’re out” approach here is beyond acceptable limits; the Court could uphold the jury’s verdict on this issue without articulating a general rule as to how many “strikes” would be acceptable.

If the Court does address the issue of the finding necessary for “willfulness,” I believe it likely to require something additional, perhaps a specific act facilitating infringement, or possibly willful indifference, but only in a way that goes beyond mere failure to deny service.

If I turn out to be right regarding these points, it is unlikely that the Court will allow mere knowledge of another’s direct infringement to suffice for a finding of willfulness under 17 U.S.C. § 504(c).

It will be months before I can celebrate my predictive abilities or must eat crow for the lack of them. In either case, I will be listening to the oral arguments and, like any good lawyer, reserve the right to change my mind thereafter.

Howard Leib is an intellectual property and entertainment attorney, an educator who has
taught as an adjunct professor at Touro Law Center, and a consultant with his own practice in both New York City and Ithaca, NY.

Summary:

The Supreme Court will hear oral argument on November 5 in two cases involving challenges to President Donald J. Trump’s tariffs imposed pursuant to the International Emergency Economic Powers Act (IEEPA). Professor Susan Morse discusses the legal issues raised by the cases and how the Court may address them. Ultimately, Morse concludes, the safest (and perhaps most likely) path for the Court may be to decide the case as a matter of “ordinary” statutory construction without resorting to either the major questions doctrine or the nondelegation doctrine.

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Learn More about Susan Morse:

Susan Morse is the Associate Dean of Academic Affairs and the Mark G. and Judy G. Yudof
Chair in Law as the University of Texas at Austin School of Law. Along with Professors Shu-Yi Oei and Diane M. Ring, Professor Morse is co-author of “The Origination Clause and the
President’s Tariffs,” forthcoming in the Washington University Law Review, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5632071

Professor Morse teaches tax classes and 1L Property. She also originated and teaches the
“Financial Methods for Lawyers” class at Texas Law and won the Women’s Law Caucus Teacher of the Year award in 2016, 2020, and 2024. Professor Morse writes about tax, administrative law, and regulatory design, is a regent of the American College of Tax Counsel and a member of the board of the Tax Law Center, and co-edits the tax section at JOTWELL.com.

Summary:

This episode explores the intersection of fiction writing and the practice of law. Victor
Suthammanont, a writer and attorney, discusses his first novel, Hollow Spaces, published earlier this year. Hollow Spaces explores race and racism, the legal system and the search for truth, and, perhaps more than anything else, family – the enduring impressions, connections, and relations between husband and wife, parents and children, and brother and sister. In his conversation with Associate Dean Rodger Citron, Suthammanont describes his journey from student actor to experienced attorney and published author. Even now, Suthammanont continues to draw on skills he developed as an actor in his legal practice. Suthammanont then discusses various aspects of the novel, including the characters’ efforts to learn the truth about the underlying events that shape the stories told in the novel. Whether you are an attorney or a law student, a writer or a theater kid considering a career in law, you will enjoy listening to this episode.

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Learn More About Victor Suthammanont:

Victor Suthammanont is a writer who practices law in New York City. He attended New York University’s Tisch School of the Arts, where he studied at the Atlantic Theater Company Acting School. After graduating from NYU, Suthammanont founded a theater company and performed in theater for a number of years. Suthammanont then attended New York Law School, where he eventually served as an Articles Editor on the Law Review and graduated with a number of awards. After law school, Suthammanont clerked for the Hon. Maryanne Trump Barry on the United States Court of Appeals for the Third Circuit, worked at a Wall Street law firm, and served for ten years on the staff of the U.S. Securities and Exchange Commission in the Division of Enforcement. During Suthammanont’s his time at the SEC, his positions included Senior Trial Counsel and Enforcement Counsel for Chair Gary Gensler. Suthammanont left the SEC in January 2025 and is now a partner at Kostelanetz LLP.

Summary:

Political gerrymandering – the practice of drawing the boundaries of electoral districts in a way that gives one political party an advantage over its rivals – is in the news nowadays. Indeed, with Texas and California leading the way, it is no exaggeration to say that we are in a gerrymandering arms race. How did we get here? Are there any limits on gerrymandering under federal law? To the extent that federal law is limited regarding the constraints it imposes on gerrymandering, are there other ways to challenge this controversial political practice? Professor Ruth Greenwood discusses these questions on this Touro Law Review podcast, explaining the importance of the Supreme Court’s decision in Rucho v. Common Cause in 2019 and various legal challenges to the federal Voting Rights Act over the years. Her conversation with Associate Dean Rodger Citron provides an instructive overview of election law and thoughts on how to respond, legally and politically, to the most blatant gerrymanders occurring today.

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Learn more about Ruth Greenwood:

Ruth Greenwood is an Assistant Clinical Professor and the Director of the Election Law Clinic at Harvard Law School. She engages in litigation and advocacy on a variety of election law cases, while training the next generation of election lawyers. Professor Greenwood litigated two partisan gerrymandering cases from the trial level to the Supreme Court of the United States, Gill v. Whitford and Rucho v. Common Cause. She also has
litigated minority vote dilution claims under state and federal voting rights acts, racial
gerrymandering claims, and cases alleging a burden on the fundamental right to vote. In addition, Ruth has advised dozens of state advocates on drafting and implementing independent redistricting commissions, state voting rights acts, and adopting ranked choice voting. Professor Greenwood was previously the Co-Director of Voting Rights and Redistricting at the Campaign Legal Center, Lead Counsel for Voting Rights at the Chicago Lawyers’ Committee for Civil Rights Under Law, and a Redistricting Fellow with the Democratic National Committee’s Voting Rights Institute. She received her LL.M from Columbia Law School in 2009, and her LL.B./B.Sc. from the University of Sydney in 2005.

Summary:

In his second term as President, Donald J. Trump has set about remaking the federal government.Recently the President sought to terminate Federal Reserve Governor Lisa Cook, asserting that she allegedly engaged in mortgage fraud and that this alleged misconduct constituted legal “cause” for her removal. Cook has denied the allegations and sued to retain her position. Thus far, a federal district court has issued a preliminary injunction preventing her removal. The Trump administration has filed a notice of appeal.
Cook’s case raises a number of fascinating legal questions: Could the alleged mortgage fraud, which is claimed to have occurred prior to her appointment to the Federal Reserve, constitute “cause” for termination? The district court said no. Cook also asserted that her termination was procedurally improper. The district court indicated its agreement, stating that the “removal also likely violated Cook’s procedural rights under the Fifth Amendment’s Due Process Clause.” As Cook’s case proceeds through the legal system, federal courts, including possibly the Supreme Court, will have to address whether her claims are justiciable – that is, whether they are capable of being decided by a court. Beau J. Baumann, Ph.D. in Law candidate at Yale and former Justice Department attorney, discusses these issues with Associate Dean Rodger Citron.
 

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Learn more about Beau J. Baumann:

Beau J. Baumann is a Ph.D. in Law candidate at Yale. His research is focused at the intersection of administrative law and legislation. His scholarship describes how institutional developments in Congress and ideas about congressional decline have affected administrative law doctrine. His work has been published in the Georgetown Law Journal, the Cornell Journal of Law and Public Policy, the Pace Law Review, and the online editions of the Notre Dame and University of Pennsylvania Law Reviews. His research at Yale is focused on the rise of the “congressional bureaucracy” and how congressional bureaucrats influenced the Progressive Era and the New Deal. Prior to joining Yale, Beau worked as an appellate attorney at the Department of Justice. In that capacity, he argued Garcia-Aranda v. Garland, which resulted in the Second Circuit Court of Appeals’ adoption of the nexus standard from Matter of L-E-A-I. Beau clerked for Judge J. Campbell Barker of the Federal District Court of the Eastern District of Texas. He received his J.D. from Cornell Law School and his undergraduate degree in Government from the University
of Texas at Austin.

Summary:

On the last day of the 2024-25, the Supreme Court issued its decision in Trump v. CASA, involving the validity of universal injunctions. By a 6-3 vote, the Court granted the Trump administration’s request to limit the availability of such injunctions in a case in which the plaintiffs challenged the legality of President Trump’s executive order limiting birthright citizenship. CASA may seem like a somewhat technical case about equitable remedies, but in fact CASA tells us a great deal about the current Supreme Court, especially regarding its views on presidential power and separation of powers in a time of political and legal transition. Jessica Silbey, Associate Dean and Professor of Law at Boston University School of Law, discusses CASA with Associate Dean Rodger Citron on this Touro Law Review podcast.

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Learn More About Jessica Silbey:

Jessica Silbey is the Associate Dean for Intellectual Life, Professor of Law, and Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. Professor Silbey teaches and writes in the areas of intellectual property, constitutional law, and law and the humanities. In addition to a law degree, she has a PhD in comparative literature and draws on her studies of literature and film to better account for law’s force, both its effectiveness and failing as socio-political regulation.
Professor Silbey was honored to clerk for Judge Robert E. Keeton on the United States District Court for the District of Massachusetts and Judge Levin Campbell on the United States Court of Appeals for the First Circuit. Before becoming a law professor, she practiced law in the disputes department of the Boston office of Foley Hoag LLP focusing on intellectual property, bankruptcy, and reproductive rights.