Elon Musk’s X is hoping that last week’s US Supreme Court decision overturning the major record companies’ billion dollar win in a copyright dispute with Cox Communications has set a precedent that can help it get out of its ongoing legal battle with a group of music publishers.
That’s despite the Recording Industry Association Of America insisting that the Cox ruling, while significant, was “narrow” in impact, and should only be relevant in other disputes involving internet service providers like Cox that do not themselves “copy, host, distribute or publish infringing material”.
However, if X is successful in using last week’s Supreme Court judgement to defeat the publishers’ copyright infringement claims, the impact of the Cox ruling will be massive.
In a new court filing, X notes that Judge Aleta A Traguer previously refused to dismiss all the copyright allegations made against it by the music publishers.
However, it says, following the Cox ruling, “liability theories” the publishers previously presented to avoid getting their lawsuit dismissed now “fail as a matter of law”. In fact, “virtually every” previous copyright case cited by the publishers when opposing dismissal “is no longer good law” in the wake of Cox.
X has never secured licences from the music industry, even in the pre-Musk Twitter days, despite it hosting countless videos that contain music. In 2023, a group of music publishers coordinated by the US National Music Publishers Association sued, accusing the social media platform of both direct and contributory copyright infringement.
They basically argued that X directly infringed the publishers’ copyrights by hosting and distributing videos that contain unlicensed music, while also contributing to the infringement of its users, who created and uploaded those videos.
In 2024, after considering X’s motion to have the case dismissed, Traguer axed the direct infringement claims but allowed the contributory infringement allegations to remain.
Which makes the Supreme Court’s judgement in the Cox case relevant, because that also entirely centred on the principle of contributory infringement, when a person or company is held liable for contributing to copyright infringement undertaken by another party.
In its ruling, the Supreme Court said that there are only two grounds for contributory infringement under US law: a company is liable for that kind of infringement if it provides a service that is “tailored to infringement” or if it “induces infringement”.
A service is tailored to infringement if it is “not capable of ‘substantial’ or ‘commercially significant’ non-infringing uses” and a company induces infringement if it "actively encourages infringement through specific acts”.
The Supreme Court concluded that Cox didn’t do either of those things. And X now argues that it doesn’t either. In their lawsuit, X’s new filing states, the publishers “made no allegation of tailoring, because X’s social-media service was clearly capable of substantial or commercially significant non-infringing uses”. And nor did they “allege specific acts through which X actively encouraged infringement”.
Cox and X are obviously providing very different services. Cox provides basic internet access to its users, some of whom infringe copyright. X allows users to upload copyright infringing videos, stores those videos on its servers, and curates and pushes those videos to millions of other users. It feels like X is much more directly involved in the infringement, and/or more proactively contributing to the infringement.
But Traguer has already dismissed the publishers’ direct infringement allegations, and - following Cox - to prove contributory infringement the publishers arguably need to show that X is either tailored for copyright infringement or induces it.
X clearly doesn’t meet the Supreme Court’s definition of a service tailored for infringement, which means the publishers will have to demonstrate how X induces infringement, possibly by encouraging users to upload videos, despite knowing a decent number will include uncleared music.
Many of X’s rivals - that also host, curate and push user-uploaded videos - have secured licences from the music industry, and have also implemented better systems via which copyright owners can demand infringing videos be removed.
Those takedown systems allow a platform to avoid liability for any content that is uploaded that is not covered by its licences thanks to the safe harbour provided by the US Digital Millennium Copyright Act.
However, if X can use the Cox judgement to successfully argue that it’s not liable for any copyright infringement to start with - whatever content its users upload - because it’s conduct doesn't fit the Supreme Court’s very narrow definition of contributory infringement, then why would it even bother to operate the kind of takedown systems described in the DMCA?
And if X is successful with these new legal arguments, what’s the point of the DMCA and its safe harbour? Which is a good question. But it’s one the Supreme Court judges have already addressed.
They wrote last week that “the DMCA merely creates new defences from liability” and “made it clear” that failure to comply with the safe-harbour rules “shall not bear adversely upon … a defence by the service provider that the service provider’s conduct is not infringing”.
We await to see how Traguer responds to X’s new arguments. Maybe she’ll agree with the RIAA that the Cox ruling is only really relevant in copyright disputes involving ISPs and not with social media platforms.
But if she does decide that the Supreme Court’s narrow definition of contributory infringement means X and its competitors are no longer liable for any of the unlicensed music on their platforms, the music industry will have to start seriously seeking some copyright law reform in Washington.