The fall-out from the US Supreme Court’s reversal of the billion dollar ruling in the major labels v Cox copyright case continues, as the music industry works out just how big an impact that landmark judgement against the majors will have on its ability to fight online music piracy. Or, indeed, to manage and license its rights more generally when music is used online.
With a flurry of new legal filings in the American courts resulting from the Supreme Court’s decision, it is becoming apparent that the Cox ruling may not only have wide ranging implications for how the American music industry fights against piracy, but it could also cause complications for how music companies manage and license rights more generally when music is being used online.
The ruling almost certainly makes it harder for music companies to force internet service providers like Cox to do more to tackle customers who pirate music. Following its Cox ruling last month, this week the Supreme Court told the Fifth Circuit Appeals Court to review its judgement against another ISP - Grande Communications - which was also successfully sued by the majors
Meanwhile, pretty much every other company involved in a copyright dispute with the music industry in the US is now also trying to figure out how to use the Cox judgement to its advantage, and this is why the ruling could as yet have a far bigger impact on music companies.
Last week lawyers for Elon Musk’s X - still known to many as social media platform Twitter - told the judge overseeing its legal battle with a group of music publishers that, as a result of the Cox ruling, that case should be thrown out. And now stream-ripper Yout wants the court to consider how Cox impacts on its legal dispute with the Recording Industry Association Of America.
Losing the ability to force ISPs to do more to police piracy is one thing, but if Yout can use Cox to its advantage, that impacts on the industry’s wider battle with piracy, and especially its ongoing attempts to shutdown stream-ripping sites that allow users to download permanent copies of temporary streams.
And if X can use the Cox precedent to defeat the music publishers’ lawsuit, that significantly reduces the pressure on the social media platform to secure licences from the music industry. And might also make X’s licensed competitors like Meta wonder why they are handing over money to the music industry.
So, how far will the impact of the Cox ruling stretch? Immediately following the Supreme Court’s judgement, reps for the major record companies were keen to stress it was a “narrow” ruling that was only really relevant to ISPs that do not themselves “copy, host, distribute or publish” infringing material.
However, the top court did more generally consider the definition of ‘contributory copyright infringement’, that being the legal principle that says companies can be held liable if they contribute to copyright infringement undertaken by third parties, usually their users or customers. Which means the ruling is relevant in any case where a third party is accused of contributory infringement by the music industry.
Crucially the Supreme Court said there were just two specific scenarios where contributory infringement applies: if a company “tailors” a service to be used for copyright infringement or if a company “actively encourages” third parties to use its tools or platforms to infringe copyright.
Which means if a music company accuses an internet company of contributory infringement, it needs to explain how that company’s service is tailored for infringement or how it encourages infringement.
Stream-ripping services have been accused of contributory infringement over the years. However, because stream-ripping sites have legitimate uses too - people may use them to legally rip audio from their own videos - it could be hard to argue that they are tailored for infringement.
If so, you’d have to show that the stream-ripper’s communications encouraged users to infringe copyright by ripping other people’s audio without permission.
That said, in Yout’s long running legal battle with the RIAA, that debate isn’t actually all that relevant. Yout’s lawyers have written to the court stating that the Cox ruling may “provide useful guidance in the present case”, but that’s not really true, as the RIAA points out in its own letter to the court.
The RIAA isn’t accusing Yout of contributory infringement, but of violating rules in the US Digital Millennium Copyright Act that prohibit the circumvention of ‘technical protection measures’ put in place by digital platforms to stop copyright infringement. Specifically, Yout is accused of circumventing measures put in place by YouTube to stop people ripping content from its platform.
“The Cox decision addresses common law contributory liability for infringement”, the RIAA says in its letter to the court. Whereas the Yout case “involves statutory anti-circumvention claims”. Therefore, what matters is whether or not Yout breaches the anti-circumvention rules within the DMCA, which - the record label group argues - it does.
X could have more luck in trying to use the Cox ruling to its advantage. It is accused of contributory infringement by allowing users to post videos containing unlicensed music. Unlike Cox, X actually hosts, curates and pushes those copyright infringing videos to its users, which means it is much more directly involved in the infringing conduct than the ISP.
However, X has already defeated direct copyright infringement claims made in the music publishers’ lawsuit, leaving just the contributory infringement claims.
And under the Supreme Court’s narrow interpretation of contributory infringement, X could now potentially defeat those allegations too. Though that’s not necessarily a foregone conclusion - we will have to wait and see how the judge responds to X’s new arguments.
What does seem like a foregone conclusion, however, is that the various other ISPs the majors sued in the wake of their original legal win against Cox will now successfully defeat those lawsuits.
ISP Grande had already asked the Supreme Court to intervene in its legal battle with the majors before the Cox ruling was made. On Monday, the Supreme Court agreed to intervene, immediately overturned the previous court rulings against Grande, and ordered the Fifth Circuit Appeals Court to review the matter in the context of the Cox ruling.