The boss of the US Copyright Office, Shira Perlmutter, has told American lawmakers that they might want to consider rewriting US copyright law in the wake of the Supreme Court judgement in the major labels v Cox case. Internet service provider Cox Communications ultimately defeated the major labels’ lawsuit, which said the ISP should be held liable for its customers’ music piracy.
Perlmutter’s comments will be welcomed by the majors which, despite insisting that the reach of the Cox ruling was “narrow”, are fully aware that the Supreme Court's judgement has greatly hindered their ongoing efforts to combat music piracy. And it could as yet impact on other important legal cases, including one between the music publishers and Elon Musk’s X.
Speaking to the US Senate’s intellectual property committee yesterday, Perlmutter said that, whatever your view on who should have won the majors v Cox legal battle, the Supreme Court’s ruling has resulted in a “significant narrowing of potential secondary liability”.
So called ‘secondary liability’ is where a company is held liable for facilitating another party’s copyright infringement, such as by providing internet access to someone who pirates music.
The Supreme Court said secondary liability only applies if a company provides a service specifically designed to facilitate copyright infringement or if it encourages customers to infringe. Cox didn’t do either of those things, which is why it ultimately won the legal battle.
However, in some other countries an ISP could also be liable if it knowingly allows a customer to pirate music and does nothing about it, even if it doesn’t actively encourage copyright infringement and its service isn’t designed to enable infringement.
The major labels argued that, under relevant legal precedents, that was the rule in the US too, but the Supreme Court did not agree. That decision, Perlmutter told Senators, has “altered the incentives for online service providers to take steps to curb infringement”.
In some countries, the basic rules around secondary liability, sometimes known as ‘contributory infringement’ or ‘authorising infringement’, are set out in copyright law, even if they are then honed and clarified by judges in court. However, in the US, secondary liability is not dealt with in the Copyright Act. Or at least, not currently.
“This might be an appropriate moment for a legislative response”, Perlmutter told Senators when discussing the impact of the Cox ruling. And that might involve “codifying the doctrine of contributory infringement” into US copyright law.
Such a move would definitely be supported by the music industry and the wider copyright industries, though would likely be opposed by the tech sector, which is pretty happy with the Cox judgement and would assume any kind of copyright law reform would end up increasing its liabilities.
And we know the tech sector generally has more influence in the White House, so it seems unlikely President Donald Trump would back any copyright reforms around secondary liability. But at least the Copyright Office boss is suggesting such reforms should at least be discussed.
Of course, Trump previously tried to sack Perlmutter, the day after her office published a report on copyright and AI that was pretty balanced but seemed to favour copyright owners more than big tech. She successfully took legal action over her sacking and got her job back. But it seems unlikely having Perlmutter on your side will win you much support within Team Trump.