Secondary Liability in the Supreme Court: Is a sea change coming?
Cox Communications v. Sony Music Entertainment is the first secondary copyright liability case before the U.S. Supreme Court since the peer-to-peer file-sharing days of Grokster in 2005. On its surface, the case is about the circumstances (if any) in which an ISP can be liable for its subscribers’ infringement, and whether Cox will owe the music industry plaintiffs $1 billion in statutory damages. But the question presented could have much deeper implications, as it invites the Court to broadly reconsider the judge-made contributory liability doctrine. In particular, the Court will consider whether contributory liability requires that the defendant “affirmatively fostered or otherwise intended to promote” infringement, which some would argue essentially requires a showing of Grokster-level inducement in all contributory liability cases.
Please join us for a panel moderated by Professor David Nimmer that will preview the issues and factual context of this important case, and discuss the potential legal and practical impacts for copyright owners and platforms of all kinds.
Josh Branson is a partner at Kellogg, Hansen, Todd, Figel & Frederick in Washington, D.C., where he specializes in high-stakes trial and appellate litigation. He regularly litigates complex copyright disputes, including music-piracy cases, rate-setting proceedings before the Copyright Royalty Board, retransmission-consent disputes, and data-scraping lawsuits. He currently represents a coalition of the nation’s largest ISPs participating as amici in the Supreme Court’s upcoming Cox v. Sony case.
Before joining Kellogg Hansen, Josh clerked for Judge Diana Gribbon Motz on the Fourth Circuit and graduated magna cum laude from Harvard Law School. He was a national champion policy debater in both college and high school, breaking the all-time individual performance record at the 2006 National Debate Tournament.
Jeff Gould is a partner at Oppenheim + Zebrak, LLP. Jeff is a nationally recognized litigator focused primarily on complex intellectual property disputes involving copyrights, trademarks, and related commercial matters. Directly relevant to this panel, Jeff played a central role as trial counsel for the Sony Music et al. plaintiffs in Sony v. Cox, securing a landmark jury verdict of $1 billion for many of the firm’s music clients. Jeff also currently represents the book publishing industry in a copyright infringement class action against Anthropic, an artificial intelligence company, asserting claims for Anthropic’s unlicensed downloading from pirated sources of millions of copyrighted books.
Billboard magazine has repeatedly named Jeff to its “Top Music Lawyer” list, which honors lawyers on the front lines of the music industry's legal battles and deals. He has also been selected multiple times as a “Copyright Star” by Managing IP’s magazine IP STARS, and multiple times as a “Rising Star” in Business Litigation by Super Lawyers magazine.
Jeff’s clients include major record companies, music publishers, and book publishers, whom he routinely represents as plaintiffs in high-profile disputes, from pre-suit investigation through trial and appeal. In these and other cases, Jeff helps clients protect their creative works and brands from infringement, online piracy, counterfeiting, and other fraud and theft. He also counsels clients privately, in many cases, to avoid litigation.
Prior to joining O+Z, Jeff was a litigation partner at Kirkland & Ellis LLP and clerked for Judge Paul J. Barbadoro of the U.S. District Court for the District of New Hampshire.
Professor David Nimmer is Of Counsel to Irell & Manella and teaches copyright law at UCLA School of Law. Widely recognized as a foremost expert in copyright law, David Nimmer represents clients in the entertainment, publishing and high technology fields. He has twice served as co-counsel representing clients before the U.S. Supreme Court. On the first occasion, a unanimous decision in favor of his client drew the boundaries between copyright and trademark protection. In the second, another unanimous decision in favor of his client set the stage to compensate all freelance journalists in the country for their past articles.
David gave congressional testimony at the invitation of the House Judiciary Committee in 2014, on behalf of the United States Telephone Association in 1997 and on behalf of the National Association of Broadcasters in 1992. He also delivered Parliamentary testimony on behalf of the Combined Newspaper and Magazine Copyright Committee of Australia in Sydney.
Since 1985, David has authored and updated Nimmer on Copyright, the standard reference treatise in the field, first published in 1963 by his late father, Professor Melville B. Nimmer. The U.S. Supreme Court has cited Nimmer on Copyright on numerous occasions, as has every federal appellate court, countless district and state courts, as well as courts confronting copyright cases in countries across the globe. Cases within the United States have relied on Nimmer on Copyright as authority in over 3,500 judicial opinions.
This event is eligible for 1.0 California MCLE credit.
