An Under-the-Radar Copyright Case with Huge Implications

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:35 Thomas: Hello and welcome to Opening Arguments. This is episode 1254. I'm Thomas. That over there is Jenessa. How are you doing?

0:00:40 Jenessa: I'm doing pretty good. I, um, been loving all the Project Hail Mary content you guys are making because I loved the book, loved the movie, sat through the first five minutes of the movie going, wow, when Ryan Reynolds has a beard, he really looks like Ryan Gosling.

0:00:56 Thomas: Ha ha ha ha. Ah, yeah. I forgot about that. I did call that out somewhere, but yeah. Ha ha.

0:01:05 Jenessa: I, my brain was so sure. I don't know where I got the wrong information and just would not update. Date.

0:01:11 Thomas: That's funny. Like, I assumed it was just like a, you know, mixed up Ryans in terms of names, but you actually did think it was Ryan Reynolds.

0:01:20 Jenessa: I was so sure. I was like, man, the beard really messes with his face.

0:01:21 Thomas: Oh, okay. Ha ha, ha, Good times.

0:01:29 Jenessa: Not at all. I

0:01:31 Thomas: That, no. Not speaking of that, what are we talking about today?

0:01:37 Jenessa: Have a copyrights case for you. A lot broader than that, possibly. Possibly so. This came out this term, and big impacts in the copyright world and the responsibility of internet service providers. I think when we get to oral arguments, we will hear this court is grappling with a much bigger issue about what to do when corporations have products that are being misused by their consumers, and they seem to not care.

0:02:10 Thomas: It's not just a Section 230 type thing or whatever?

0:02:14 Jenessa: That is definitely going to get alluded to in oral arguments, but the decision here is going to really narrowly avoid that, because it's the service provider and not a platform. So it is a little different, but it's going to touch on that for sure. Sure, itself will try really narrow and try to avoid all of this, but I think they were thinking about it and very worried about it and narrowly tailored this because they're thinking about it. So arguments get very interesting. Yeah.

0:02:24 Thomas: Right.

0:02:43 Thomas: Okay. So is this a sneaky consequential case that's kind of under the radar?

0:02:48 Jenessa: I think so. Definitely. People in copyright land already know this is very consequential for them. Um, Of that. Yeah. I, I think we're going to get a sneak peek at just how much all the justices are struggling with this.

0:02:55 Thomas: Sure.

0:03:04 Thomas: Interesting. All right. Well, I'm intrigued. I guess we'll have to get to it. Why don't we take our first break, which you can avoid. Patreon .com slash law avoid these annoying ads and get a lot off of movies and other goodies sometimes, and most of all, support, support what we're doing here. All right, thanks so much, and we'll get to, um, Where should we begin here?

0:03:25 Jenessa: So let's hit, first of all, just some basic facts of the case. Communication, Inc., which will be referred to as Cox over and over again throughout the case, and I couldn't stop laughing because I'm a child. Are an internet service provider, ISP. Um, how that is, it's a very monopolistic. They have their areas, so like, I'd never heard of them before. Clearly they don't cover whatever areas of the country I've lived in. Um, They have big areas that they cover. Yeah.

0:03:39 Thomas: Right yeah the ISPs and those cable type companies sure are like cartels they're like we have we have the northern territory Tori. Anyone comes over here, we murder them.

0:04:03 Jenessa: Yeah. You ever want to cancel those subscriptions without having a big fight? Just literally tell them, I moved to an area that you don't cover. And they're like, oh, okay.

0:04:10 Thomas: You can't. Yeah.

0:04:16 Jenessa: It's the one thing they can't you on it. Provide internet service to all kinds of people. They sometimes find out through Mark Monitor, it's called. There's all, all kinds of ways, but this is a service that various copyright holders came up with to let you know that copyright infringement is happening from one of your IP addresses. And so you found out illegal activity happened. Oh my God.

0:04:40 Thomas: Hmm. So, oh, as a, as a, like a consumer of the internet, not like as the copyright holder.

0:04:53 Jenessa: The copyright holder finds out their copyright was violated and they tell the internet service provider, here's a list of IP addresses that are violating my copyright.

0:05:05 Thomas: How do they know that?

0:05:06 Jenessa: This thing. It's called Mark Monitor. It's some I don't know. Not a tech person. Somehow, some way.

0:05:14 Thomas: It's a series of tubes.

0:05:16 Jenessa: Yes, very much a series of tubes. They figure out, here are the IP addresses, that are illegally downloading music, movies, whatever. Sony is our plaintiff, uh, the original lawsuit they won in the lower court as the plaintiff. They are the respondent here for the appeal. Um, holds copyright to all kinds of music and movies and everything, so find out about these illegal downloads. They let internet service providers know, among them Cox Communications, and will sometimes send out notices to those IP addresses, like, hey, cut it out. And there's a lot of dispute as to the facts here. So hear Sony tell it, they sometimes send notices and this is just, they just send it to say they sent it, they're never going to really do anything about it.

Um, they don't even bother sending it at all. They could send one notice after another and it doesn't, you know, they have no intention of acting on this. They send a notice and do nothing, like this is encouraging people to keep doing it, yada yada. Also apparently an email where Cox Communications specifically says, uh, the DCMA Digital Millennium Copyright Act like they don't care at all um that's not a great document for them um hear Cox Communications tell it oh we send a notice and then if they um it again we send a notice that they have to respond to in order to turn their internet back on and then if they do it a bunch more times we send it notice and they have call us to get it back on.

And then there's some people where we canceled their internet, like we do stuff, and when we send the notice, 95% of the time it's been effective. So I cannot for the life of me figure out how we have this, just, well, this is why it went to a jury, right? Because we have this wildly disparate accounting of the facts. Yes,

0:06:08 Thomas: Hmm, yeah, it went, It did. Okay.

0:07:25 Jenessa: So it went to a jury. Sony won. The jury said yes, there is infringement happening and Cox needed to do something about it. So that's our question here. Um, Sony absolutely could sue if they could figure out who is illegally downloading this stuff. That's direct infringement, it, there's no question here at the laws that currently stands that is illegal. So is, um, one of those is probably really small fry if you could even find them. And big ones are hiding overseas for a reason. So it's just not practical to go after like individuals who downloaded one album.

0:07:33 Thomas: Jeez.

0:08:06 Thomas: So we got like essentially internet provider and what gives them this duty? Is this in the law that

0:08:10 Jenessa: Is exactly the question. Do they they have a duty. That's the whole question here. General concept that you have that copyright exists at all, that's in the constitution, um, copyrights and patents. Congress passed any specific laws about that, there had been court cases that established what's called secondary liability here. Primary direct liability would be you substantially copied my book. You illegally downloaded the music, whatever. That's obvious. Obvious. Secondary liability in these court cases said that happen through vicarious or contributory liability. Vicarious is not really at issue here. That's when you have control over the other person's behavior. That is like employers, that kind of thing. Contributory liability can happen ifthe user's infringement was essentially intended by the provider. There's an intent requirement. So if you actively encourage it through specific acts, like if you're advertising your product as like, this is for copyright infringement, which happens. There's like, you right? We all knew what that was for. Or a service tailored to infringement if it's not capable of substantial or commercially significant non -infringing uses. If you have legitimate and illegitimate uses, it's não é realmente a sua culpa que algumas pessoas usam ilegitimamente, mas

0:09:39 Thomas: This why they tried to make Napster be like an actual thing. I remember when, when they made Napster, it was going to be like a real company or something, and I was like, that's weird. What is that going to do? But they sold music for a little while.

0:09:52 Jenessa: Exatamente certo. Se is the case for this. You could use those to record a TV show when you're not home and then watch it later. Totally legal. Or to record A TV show and then sell copies. Not legal. They were not liable for what their customer was doing. They did not have secondary infringement because you have legitimate uses. You're not advertising it for the illegitimate purpose. You are not not specifically tailored to an illegitimate purpose, you're fine. So court cases establish this. There's also just general concepts for any property crime or all kinds of property crimes and torts, aiding and abetting.

You know, if I can show I had some kind of intent to work with you to facilitate it. Gave examples in oral arguments of like, if I were to try to help you hide it. Tries to make an argument like they profit off of this by not kicking people off. Is not going to fly. The judges are going to be like, yeah, but I mean, everybody profits by not picking their customers off their service. That's not that's not a close enough nexus, you know, they not kicking people off for violating this? Yeah, because they want customers and they don't care.

0:10:06 Thomas: Right. Really?

0:11:04 Thomas: That's interesting. That's what I was figuring the incentive was there. Yeah.

0:11:15 Jenessa: But that's not like a direct, and therefore they profited from the fact that you illegally download. It's more like they profit from the act that they don t enforce some other person's right. That's not a close enough nexus.

0:11:15 Thomas: Not getting you in trouble. Yeah, oh, that's that's a great point. I don't really catch that. I Didn't think of that distinction. But that does make sense.

0:11:40 Jenessa: It's a little nitpicky, but when you pull it apart, it's actually going to be really meaningful for like when you have an affirmative duty to do something. This is all hanging in the background of like we have precedents where we have found people secondarily liable. They didn't infringe the copyright, but they induced someone else to infringethe copyright. They are tailored to help people. Have intent where Where, like, if you have that intent, if I help you cover up your crime, I mean, that's just direct infringement most of the time, right? Like, I just did infringement, essentially. Congress creates the Copyright Act of 1976, where they make express, like here are the ways you can violate someone's copyright. Right. We had copyright in the law way before that. So it was always possible to get copyrights and have your copyright violated. But now we have some specific lists. Don't expressly write out secondary liability. They just say, here's the direct liability.

So if you're going to be a super textualist and go, well, if they meant to make secondary liability, they would have said so, you could say that got rid of that. But they also didn't say they got rid that. So we're in a little bit of a weird place. DCMA, Digital Millennium Copyright Act, comes out. And this is, you know, trying to update the digital age. It's Congress, you know, they're doing that about as well as they think they can.

They create what's called a Safe Harbor Defense for Service Providers. So it's very specific for these internet service providers. Going to say, if you do the following, you cannot ever be held secondarily liable. Implement a policy that provides for termination in appropriate circumstances of subscribers account holders who are repeat infringers.

0:12:16 Thomas: Hmm. Okay. Okay,

0:13:45 Jenessa: It does say, Failing to qualify for that safe defense, it doesn't automatically mean therefore you are secondarily liable. You have other defenses available to you, but if you do do this, it's like an incentive. Participate with copyright holders to try to help them enforce their copyright, and we will make sure you cannot be held secondarily viable for what that person did. That kind of implies that Congress does think, if you don't take any affirmative steps, it's possible to be held secondarily liable.

0:13:54 Thomas: For sure. Sure. Yeah.

0:14:25 Jenessa: Going to end up with a decision that just admittedly, by everybody, gets this completely useless. Yeah, and it's weird. So, we're goingto come out 9 -0. So Cox is not liable for this. Signing onto an opinion written by Thomas. We get a concurrence from Sotomayor joined by Jackson. Is where they're going to split. Writes is, hey, listen, got the Copyright Act and that just doesn't even have have any secondary liability. The Copyright Act, we had very specifically cases about copyright that created secondary liability in those two examples. We had the contributory thing where you either actively encourage the infringement or your product is made for infringement. What he says is, it's just a very Thomas -y thing.

0:14:33 Thomas: Really? Huh? Yeah.

0:15:27 Thomas: Me. That dickhead.

0:15:28 Jenessa: It's a very Clarence Thomas -Y thing. We are loathe to expand such liability beyond those precedents. It's, there's no citation. You just mean we, I guess the royal we, just he doesn't like doing that. Are going to restrict this to now on, the ways you can be secondarily liable for copyright violation is this. Like we're done expanding our precedent now that Congress passed a law that didn't have have any, done. Congress can make more if they want to make more.

0:15:41 Thomas: Yeah, I

0:16:05 Jenessa: Sotomayor is going to jump in and go, why? You just say that. Why are we loathe to do? Okay, whatever.

0:16:12 Thomas: Think we're already on the decision here.

0:16:15 Jenessa: Yeah, because I want to go to, the oral argument is going going to go on a whole other path about guns and Twitter and ISIS. We're going on a whole other direction.

0:16:22 Thomas: Oh, I see. So so this is like lesson. OK, gotcha.

0:16:27 Jenessa: Yeah.

0:16:27 Thomas: Gotcha. OK.

0:16:27 Jenessa: So this is really isolated to the copyrights and the internet service providers. Sotomayor is going to say in her concurrence, all these decisions you guys are citing, they held open the possibility. There's other types of common law liability. Yes, Yes, we never officially applied them to a copyright case in the past, but we have applied them to all kinds of property law in the past. Why would we not? Grokster is a case they cite as like, yeah, I never heard of that one. It sounds like Napster. It must be related.

0:16:30 Thomas: Makes sense.

0:16:56 Thomas: Rockster. Maybe.

0:17:01 Jenessa: They just on the name and Napster was never getting a trademark on that? I don't know. Know says in Grokster they expressly held open the door there could be other forms of common law liability. We're just, this is one of the ones we're going to use. So like, I don't know why you're saying like, just Congress passed a law and now we're просто saying they didn't say anything about it and supposed to give effect, if possible, to every Every clause and word of a statute. When Congress wrote the DCMA, they tried a thing to encourage people to cooperate and prevent copyright violation by, an incentive, protecting you from secondary liability. So just deciding Congress didn't want to have any secondary liability. How can that be true when they pass the DCMA later? Exactly.

0:17:37 Thomas: Yeah yeah.

0:17:51 Thomas: What were they doing there for

0:17:53 Jenessa: Exactly. So that doesn't make any sense. She will still say, if we go for something like aiding and abetting liability, it still requires proof defendants had intent to help with committing the wrongful conduct. And that's not here either. Internet service provider provides a thing that is a lawful service. It's most often used lawfully, arguably. The internet feels like a mistake lately.

0:18:19 Thomas: Porn, for normal, lawful stuff?

0:18:21 Jenessa: Yes.

0:18:21 Thomas: Stuff, yeah.

0:18:23 Jenessa: They totally agrees with the majority opinion. They not advertising the internet exists to infringe copyright. They don't have a service that is specifically tailored to infringe copy right. And also by merely continuing to provide it to somebody they know has violated it in the past, even somebody they know will probably violate it again in the future, it's still not the same as, like, intending that they keep violating it. It's, you knowledge is just generally not enough. So why does does this distinction matter here? If we had gone with Sotomayor's interpretation, Jackson's sign on, basically what it would mean is in this current example, Cox is not liable. You know, they're providing two small regional ISPs where on one IP address, there could be thousands of people and they have no idea. What are they supposed to do to try to stop that? College college dorms where there's lots and lots of people, even a multifamily house. There could be five people on that one IP address. It could be the neighbor with the Wi -Fi password. They don't know who the person is. And she says that information gap is fatal to

0:18:57 Thomas: Hey.

0:19:42 Thomas: Yeah.

0:19:43 Jenessa: The issue. But she would leave open the possibility of like, if you knew down to an individual, this person is infringing, they're going to keep infringing. Most of what they're doing on your network is illegal, you could hypothetically be liable. We would leave open the door to other types of secondary liability in the future. With Thomas's, it's done. These are the only ways you can be li able. Change how internet service providers need to operate around this. There's some really interesting clips in the the oral arguments that will illustrate this, um,

0:20:09 Thomas: That is weird. This

0:20:21 Clip: Incentive would you have to do anything if you won? If you win and mere knowledge isn't enough, why would you bother to send out any notices in the future?

0:20:29 Thomas: That's a pretty good question.

0:20:30 Clip: What would your obligation be? For the simple reason that Cox is a good corporate citizen that cares a lot about what happens on its system. We do all sorts of things that the law does not require us to do. But don't you do these notices in an effort to get the safe harbor, and aren't you sending these notices to avoid liability? You would have no liability risk, right, if you win going forward? That is correct, but I want to underscore my answer to you. Let me stop you there. I mean, if purpose is the test, nobody, very few bad actors come out and say, I intended to do something awful. You infer it from circumstances, and a jury could still infer purpose from your knowledge and some other actions, right?

0:20:37 Jenessa: I

0:20:38 Thomas: Sure. That's such a bullshit answer. Yes.

0:20:44 Jenessa: Think

0:20:50 Thomas: Yeah.

0:21:17 Jenessa: Was laughing too, the idea of of like, oh, we just we're just a good corporate citizen.

0:21:18 Thomas: Good. Can't. We pick up our trash and we recycle, we separate our recycling and, you know, yeah, that is pretty funny. Oh.

0:21:21 Jenessa: Yeah. Kagan is going to revisit this in a way that I think, uh, really addresses that.

0:21:36 Clip: It really doesn't matter whether Cox is a good corporate citizen. You know, there's a lot of talk in your brief and in Mr. Clement's brief, is it a good corporate citizen, is that a bad corporate citizen? But as I understand your argument, it could be the worst corporate citizen of all time. And still, it doesn't matter that there would be no liability. Is that right? That's correct. But I was making the point earlier about the corporate citizen in response to the question, why would an ISP continue to provide anti -infringement programs if they don't have to? And I was simply saying. Okay, but it's basically irrelevant to the matter at hand, to the liability rule. It is irrelevant, both the invective from plaintiffs and my protestation. You're crowing.

0:22:28 Thomas: You're crowing. Wow.

0:22:29 Jenessa: I had never heard that expression before, but I think from context, I, Megan is just truly like, shut up. I don't care about your advertising today that you're such a great company to work with. Like, it doesn't matter. Why are you telling me that you're a good corporate citizen? You are telling me for legal purposes it's completely irrelevant. And he says it is. It is irrelevant whether we are or aren't a good Corporate Citizen. It doesn't matter. The point of my argument, Cox Communications, is that we're not liable at all. We don't have to do any of the things we're doing. And she's like, okay, so are you telling me about it? Why does it matter at all?

0:22:32 Thomas: Have, but that feels, yeah, that feels kind of harsh. I don' t know.

0:23:17 Thomas: I guess it would be, maybe, I mean, if the question earlier, and I don't know that I have the full picture of this, but if the question earlier was, "Hey, why would you have any incentive to do this?" Maybe he's just, you know, he's attempting to, maybe he's worried that, okay, well, if this ruling is going to get rid of any incentive to report these IPs or whatever, to write letters to these IPs, maybe they'll be less inclined to do it. So he's trying to salvage that and be like, "Oh, no, we would do it out of the kindness of our hearts." But so I guess I don't really understand Kagan's point. Um,

0:23:52 Jenessa: You're interpreting it exactly correctly that that he has to, I wouldn't say has to. He's trying to save it because I think that is exactly the concern the justices are expressing is like, if we go all the way, and they ultimately do, if мы go all the way for your argument, there is no incentive, there is no requirement. Without liability, why would anyone bother? And the answer is, you wouldn't. You would essentially only do it out of the goodness of your heart, and you are a corporation, no one believes in your heart. So he's trying to do that as, like, it is a way to try to be like, we would, we would. From the perspective of you are here in front of the Supreme Court to make a legal argument, that is nothing. That nothing to back up that, like, that is an empty promise from a legal perspective.

0:24:17 Thomas: Of course.

0:24:43 Thomas: Yeah. Yeah. And as I look over it again, she says, "There's a lot of talk in your brief and Mr. Clement's brief: is it a good corporate decision? Is it about..." So, yeah, I guess they must have spent a lot on that, and it's kind of like, what's the point? Okay, now now I get, yeah, now I, I get why she's like, why a little frustrated.

0:24:48 Jenessa: Yeah.

0:25:04 Thomas: I guess, yeah, I was kind of confused. Yeah.

0:25:00 Jenessa: I frustration. In here. Yeah, and would apply to all internet service providers, so why would it matter to me what your company ethic is. Yeah, so it was possible a better answer would be like, here's reasons companies would, companies in general would still do this anyway, but the, the honest answer is he doesn't have it's not true. Don't lie.

0:25:12 Thomas: If Cox in particular? Yeah. Yeah. No.

0:25:27 Thomas: Yeah, exactly. Well, if you don't lie, then you can't be a lawyer. I don't know what you're talking, that's why they got into it. Take all the fun out of it. Yeah.

0:25:32 Jenessa: So boy. Yeah. So, so I think that really emphasizes they is openly admitting this, and that's the decision they came out with at the end of the day is, yeah, so basically there is no requirement or reason for your internet service provider to do that thing where they send out the, like, "Hey, hey, you shouldn't. It's the law. Copyright infringement." I imagine many internet service providers just flat out stop doing it.

0:26:08 Thomas: Well, that's interesting because that strikes me as, like, not, that wouldn't be what I would think would be the more important thing. That strikes me as a consequentialist argument, which I'm more open to than usually the conservatives. For me, it would more be like, well, then what was Congress doing? It wouldn't be, oh, now They have no incentive to do this thing. It's more, for me, well, why was Congress do this at all? Why would they even have passed a thing that says, hey, if you want to avoid this thing, here's what you can do, if the thing doesn't exist, you, doesn't make sense. Hmm.

0:26:18 Jenessa: Yeah, yeah. Right. Yes, yes.

0:26:42 Jenessa: Exactly. And that's the focus Sotomayor has is less about that it's some horrible tragedy If Sony can't recover here and is to try to put into effect what Congress has to do, what the Constitution has tried to do. And really openly undermines the provision, the safe harbor and the DCMA is just uh, useless now. So that is weird. And it's especially weird when Thomas wrote it and Sotomayor wrote the, I concur only in the judgment on that one. You are a copyright attorney, if you are somebody who works for an internet service provider, this is like rocking your world right now. This is changing changing a lot. Most of us are not operating in that area of law.

0:27:29 Jenessa: But why is this a big deal otherwise? Jackson will give us a hypothetical that is still around copyrights, but it's going to start to introduce why this might be more broadly applicable. So

0:27:29 Thomas: Did

0:27:42 Clip: Give you a hypothetical, and you tell me whether or not liability lies. Suppose I come to you and I want to buy your services. I tell you that I, as a customer, am addicted to infringing on the Internet. I've been sued before. I know what I'm doing is illegal, but I just keep doing it. And not only that, Cox, based on where I live, is my only option. At my new house, it's the only way that I can get Internet services. If Cox sells to me, knowing all of that, you still say no liability for secondary liability in that situation. That's

0:27:56 Thomas: This Like the other week when Matt was saying, uh, Amy Coney Barrett was confessing to the pills thing. What if KBJ is like, let's just say hypothetically, and stupid Cox is the only, I, I mean, Cox is the only thing near me.

0:28:36 Clip: That's correct, Your Honor. That's a difficult hypothetical that pushes the envelope. That's the point of the hypothetical. Yeah, understood. Let me just underscore. The facts you recited are facts that would make it totally plausible and, in fact, would invite the plaintiffs here to sue that infringer directly. They have recourse in a situation like that. Can I follow up? Sure. I just wanted to say, under those facts, would there be liability under common law, sort of general aiding and abetting principles? Wouldn't that be enough to sustain liability?

0:28:41 Thomas: Yeah.

0:29:11 Thomas: That's interesting.

0:29:12 Clip: No, Your Honor. The reason that it wouldn't be enough for Cox in this case is exactly the reason that it wouldn't be enough under the common law. The common law also requires a culpable act, not the equivocal act of selling to everyone on equal terms. Smith & Wesson says that, and Twitter says that too. That is an equivocal act that does not align oneself, that does not align the seller with the purpose of promoting infringement. Thank

0:29:43 Jenessa: Two cases he just mentioned, Smith and Wesson and Twitter, uh, they're going to start coming up a lot already, I think. Very interesting, this concept of aiding and abetting. That's Sotomayor's concurrence, and that is going to be like 90 of this oral argument, and not at all what the decision ultimately is. So it's The thing they're clearly grappling with here, year. & Wesson, that was a case where some, some good government group in Mexico or something like that, sued Smith & Wesson and said, "You are selling your guns to dealers, they are selling their guns to Mexican drug cartels, and you know about it, and shouldn't you be liable?"

And what the court said was, you if they sold to a dealer knowing that dealer sells to drug cartels, that was the full purpose. I just mean to sell to a Mexican drug cartel. The fact that I insert a middleman would be irrelevant, of course. But if I sell to a company and I know that, you company may or may not do unscrupulous things. Sometimes they sell to legitimate customers. Maybe in the past they sold to an illegitimate customer. It was just not the nexus was not there.

The closeness of the relationship to say they had the the requisite intent to be able to say they meant for their guns to get into the hands of drug cartels. They meant to facilitate the crime and are therefore secondarily liable, essentially rough. It be nice to hold them liable for this? Is gonna give us a what-if scenario that, from the way she frames it, almost seems to imply this is true? I can't tell. Um, didn't come up in the case. So

0:30:03 Thomas: Right.

0:30:28 Thomas: No, we like guns. Yeah. Oops.

0:31:38 Clip: Was a scenario in the Smith and Wesson case which we didn't quite have to grab hold of because of the way the complaint was framed. But suppose that the complaint had said there's a manufacturer and and it provides guns to dealers, and it knows to a certainty that there's a specific dealer that's a bad apple dealer that's passing this on to Mexican drug traffickers. Is the manufacturer then liable for all the harm that that causes?

I mean, there was like a separate question of proximate cause in that case that this court didn't reach, and I don't know the answer to. But I think, you know, and I think there were questions at oral argument about red flag dealers, And if you had specific knowledge, you were providing them to the red flag dealers. I think that probably would satisfy the intent standard, at least at the common law.

Again, I don't know all of the details of the PCLAA or whatever it is that was at issue there, so I don' t want to sort of speak against any of my other clients. But I do think that with respect to the common -law intent, that would be satisfied. What about willfulness? Can you speak to the argument that willfulness here requires that the defendant understand that its own conduct is unlawful? So I think they're wrong about that.

I think their wrong about for reasons that are textual and also reasons that have to do with kind of the common law and the way that it treats aiding and abetting or secondary liability. So if you think about the common, you are, if you have aiding in abet, then you are essentially on the hook for the the consequences of the mens rea of the person you're assisting. And your own sort of mens reа beyond aiding and abetting doesn't count.

So if I aid and abett a first -degree murderer, I'm, you know, either criminally or civilly, I'm on the hook for the first -degree murder. But whereas if I aide and abette, all my conduct is exactly the same, and I aide -and -abett somebody in manslaughter, the consequences are different. And then if you look at the text here, the relevant text is 504 of the Copyright Act. It actually doesn't focus on the mental state of the infringer. It asks whether the infringement was willful. And, of course, in this context, it's the direct infringer who's doing the infringing. Thank

0:33:51 Jenessa: I think this is super interesting because the Smith and Wesson case is not the internet. It is not copyright. It's not the Internet. It is just about this secondary liability thing. So it is talking about the idea that we would take a common law concept of secondary liability and possibly apply it in this case, and then we ultimately don't, um, seems to be grappling with something that, I mean, just it didn't really happen here anyway, but like this, this question is on everybody's mind. Smith and Wesson comes up, that case repeatedly, multiple justices bring it up, and then you hear Jackson get into, uh, the very specific question that her and Sotomayor will address of like what, what What intent is required here for the aider and abettor? What do they have to have meant to do in an accomplice adopts the intent of the person they are accomplicing?

0:34:52 Jenessa: Typically how it goes. So like, how exactly does that work in copyright acts? Is just hanging in the background of like, should we have done something different with that case? Is gonna really dig into that at

0:35:05 Clip: That mean that your answer to the question I asked Mr. Rosenkranz is that, yes, Twitter would not be liable for facilitating child trafficking if it knew that a particular user was using its account for that purpose? It wouldn't be secondarily liable.

That is, I think lurking in Twitter was the idea, and the companion case, Google versus Gonzalez, was the ideia that perhaps a platform like YouTube or Twitter, a platform on which potentially infringing or otherwise unlawful content actually appears, the platform could be held directly liable on the theory that it was speaking the words as well as assisting the third-party content provider in doing so.

And this is a little far down in the weeds, but in the Communications Decency Act of 1996, 230C1 said generally that platforms that host third-party content will not be treated as the publisher or speaker of that third-part content. But for purposes of aiding and abetting, your answer is the same. For purposes of aiding and abetting, the answer is the same. And obviously, direct copyright infringement is a strict liability offense.

That is, if you think of the platform as the person who's actually speaking or publicly performing the infringing video, then it doesn't matter whether the platform wants to infringe. It can be held liable on that basis. But because Cox just provides the infrastructure, there's no plausible theory of direct liability. Mr.

0:36:45 Jenessa: Think this is really interesting, we have the lawyer for the government here who, like, you have direct skin in the game about the exact Outcome of Uh Yeah, yeah. So we had the lawyer for Cox Communications at the end, they are talking to Kagan, we had the lawyer for Sony. Here in the middle, we get a lawyer for the U.S.

0:36:52 Thomas: Sorry, the government? Government?

0:37:05 Jenessa: Government intervening to say, we have some opinions about how you should do this. Of that, know, the they, exact outcome of like who wins or doesn't win money in this case is not their particular interest. But this might affect all kinds of enforcement the government may or or may not want to do.

0:37:04 Thomas: Oh, so it wasn't like Congress's lawyer that's like, here's what we meant when we wrote this.

0:37:31 Jenessa: Yeah, this is the government intervening to say some opinions on how we wish enforcement went against internet service providers. He's going to essentially advocate that it would probably be in everyone's best interest if you really tailor this to internet service providers and talk about how they are a really unique situation. And I don't know that that is really what they got here. I Think this decision will apply to anyone who could get accused of secondary infringement. But essentially what he's trying to say here, have that Section 230 thing, right? And that has generally protected protected platforms that host other people speaking. You're not the speaker. Uh, we have something that is strict liability offenses, meaning, um, essentially no intent requirement. So if you violate someone's copyright, let's say I substantially copied your music, we've had this before, like, I don't have to even remember having heard your song.

The point is, I did at some point have knowledge of your work, and I have, you know, you're gonna have to prove this, I have clearly substantially copied it, and therefore you are entitled to the damage I have done to your work. don'T have to have meant to hurt you. I DON'T have TO have meant TO copy it. It's just sort of the way the creative brain works. Right. And in the same way, when you illegally download copyrighted works like that just is

0:37:56 Thomas: I really

0:39:07 Jenessa: An offense. I don't have to prove you like meant it. Um

0:39:12 Thomas: Meant to download that Dave Matthews ban in 2001. I did. I did it. I confess.

0:39:15 Jenessa: Yeah, yeah. It's Essentially like, know if you took an item, uh, criminal liability would clearly turn on, like, knowing you did it, knowing Certainly for civil things, like, one way or another you have to give it back, you didn't pay for it, so from the damage, damages perspective, it's strict liability. So what he's getting at here is, in theory, if you could show, forget this secondary thing, if you could show direct liability some reason that they are actively participating, they they want to have people infringe and they are helping and they. They did would have to be more of a one on one sort of incident, but they did infringe, it's strict liability. You don't have to start inquiring about like the mental state of a corporation.

0:39:26 Thomas: Right. Mens rea.

0:40:08 Thomas: Yeah.

0:40:08 Jenessa: The problem here is they are just hosting the Internet. It's just the infrastructure by which somebody did an illegal thing, but it is an otherwise legal infrastructure. So you're not going to get to direct liability in this circumstance almost ever. It's hard to imagine. Came up with some, you scenarios of example, trying to help people cover it up. If they made part of the infrastructure B, we have a program that is specifically designed to hide IPs after we determine they have been used to illegally download stuff. We will protect you from detection. Okay, not secondary. You like and help with copyright violation. So he's kind of trying to like worm, his way through this little eye of the needle and say, you can do this for internet service providers without touching on 230, without accidentally saying like, oh, Twitter could just, I think under this decision, if somebody was just hosting stuff on Twitter or on YouTube that violates the DCMA, I don't know that they have an obligation anymore to do anything about it.

0:40:53 Thomas: Even Though they're not the internet provider, they're the platform, you

0:41:32 Jenessa: Think the way that Thomas's majority is written is not restricted to, they are also in a way, I mean, it is digital infrastructure, but it is infrastructure, and they don't affirmatively help the copyright holder, or some other person that they have otherwise no obligations to, if they don't help them take it down, are they liable? Like, Twitter or YouTube for the purpose of infringing. They're not advertising it as existing for the purposes of infringement. So, like, what would be left? I don't know.

So I think the government lawyer was kind of trying to avoid that, and that that might be exactly what happened. A refresher on the Twitter case, and he mentions Google v. Gonzalez, those were the ones where people sued to say, okay, we understand under Section 230, people post on your platforms, you kinds of content that is, maybe it's defamatory, maybe it violates copyright, maybe it's fully illegal, and you're not held to have, like, said the same, those words didn't come out of your mouth, but you guys have algorithms that push this content at people. So when it was ISIS using these services to advertise like, join ISIS, hooray, I don't, I have no idea what those advertisements would look like, it doesn't show up in my algorithm. Um, it does show up is the algorithm of young white angry men because they're more likely to join ISIS. Um, the algorithm has figured that out about them. Uh

0:43:16 Thomas: Men are going to join ISIS, huh?

0:43:18 Jenessa: Generally targeted for violent content, so Don't know if that would like pick up on, like, oh, you watched this innocuous Muslim content and then it would feed you that, I have no idea. Um The general take in there was that it pipelined the kind of people who were seeking, like, violent content or were Susceptible to that, and it fed them, like, join Join ISIS, we love violence, and led to recruitment. It did. They plan a terrorist attack on YouTube? No, but it recruited the people who then got off YouTube to go plan a terrorist attack. And the argument was, it's not that you, by virtue of hosting them, that's all it took. The issue is, your algorithm helps them do it.

It tailored to it, and you profit off the algorithm, like, without the algorithm your thing would be less interesting, less addictive, and it would not necessarily feed their content to the exact person who is susceptible to it. And they lost.

Uh, the court said, said was, you still don't have the nexus there. So this part I have to agree. Do I think Twitter and YouTube love ISIS? No, I think that's obvious. Um, totally agree that they are profiting off the algorithm and it's really messed up that they have done nothing. It seems to address the issue that it, like, people violent content, that's how is that not a problem we've addressed somehow? But the argument was essentially what you have not shown is that they specifically favored ISIS content, like, in order to draw the connection between Twitter and YouTube and ISIS to say, as a secondary liability kind of thing, that they wanted a terrorist attack to happen Or they wanted to help ISIS and ISIS did a terrorist attack.

You're going to have to show that they did something special for ISIS. And like they say the algorithm alone doing this thing with violent content is not enough. Um, the law currently stands, I guess, I, I don't know, I, it's, it's really hard because my bias is to say, like, this, this has to stop and this is horrible. Um, point being, this Twitter and Google v. Gonzalez is coming up repeatedly in this oral argument, the idea that this could could apply to other platforms, and Barrett bringing up child trafficking, that this could apply to not just copyright, but are you saying, and the answer is yes, it's not just if Twitter knew that this count over and over and again, copyright violation, copyright violation, not only would they not be required to get rid of the account, to report the account, to do anything to take the content down, would that also apply if they were like, oh, this is the child trafficking account? The answer doesn't change.

0:43:20 Thomas: Probably.

0:43:29 Thomas: They know everything. Sure.

0:43:39 Thomas: Right.

0:46:36 Thomas: If we're talking about some sort of liability, like for copyright, I that be okay, police would subpoena to get, like, this is, and they would have to cooperate with revealing who that is, and then there's going to be, you like, actual criminal stuff unless

0:46:48 Jenessa: Yeah. So And that should be available for copyright for any of this stuff. The copyright end of things, it's not a practical solution for the most part. Um, for a consistent major infringer, yeah, I'm sure they'll still pursue that. Um, for these more severe examples, like child trafficking or something, um, if police become aware of it, you would assume that all of the usual police procedures would happen, that subpoenas would happen. And I think, unlike the whole, you know, joke about good corporate citizen for everything else, I think, like, a lot of this, like, criminal gross activity, corporations do tend to get the subpoena and cooperate, like, they don't want that on their site. Um, I think that's a lot more plausible to say, like, of course they're gonna just do that. This is also dicta here, because the Thomas decision is just about under copyright, these are the only secondary liabilities. So we don't get from this, for sure, we cannot pull from this decision. You don't have to take down, like, crime accounts. But I it's very interesting. She brought this up twice.

0:47:59 Thomas: Someone's totally copying my crime. I did that crime first, worked really hard to think of that, it was elaborate, and

0:48:00 Jenessa: Right? Yeah. Brings up child trafficking twice. Sotomayor brings up guns twice. They Kagan brings up the gun cases. They keep bringing up other types of really serious things that have secondary liability. And like, what are we supposed to do when these corporations, I can't right this second prove that they meant to do these things. It's really just they're indifferent and they're not doing the good actor stuff we we want them to do. But under the existing laws and common law, I just can't seem to find a way to hold them responsible. What do we do? What do We do? It is really interesting, and I'm what this portends when the next case like that comes up, that they can't stop asking about it in a case where it's not directly relevant, and they tailored this decision extremely narrowly, so think it affects probably platforms, not just internet service providers, but it does stick only to copyrights, and it manages to find a way to do that that Sotomayor's would not, so maybe that's why they did not go with her option, so

0:49:23 Thomas: Okay, so what are you anticipating then it will be the effect of this? I mean, so I guess you're saying Clarence Thomas's the decision is like just for copyright stuff. It's supposed to be narrow like that, but you think there's going to be some possible knock-on effects of this?

0:49:41 Jenessa: Sure, if you live in copyright land or internet service providers, um, splash, um, would not be surprised to see DCMA takedown notices going way down because there's just not an incentive to do it. Um, uh, not just internet service providers do the same thing. I would not be surprised. I know if that even needs to come to this court. Would they just deny cert and be like, of course, our precedent in Cox v. Sony applies to YouTube.

We never made any reason why it would only be ISPs. In terms of things outside of copyright, I think it's probably going to tempt a lot of people. This is going to get cited when you say, oh, you're secondarily liable for hosting this other kind of content. We're like, we're Twitter, Smith and Wesson may have left open a door to like, if you could prove a more direct nexus, then this could be liable. They couldn't pull it off with Twitter.

They couldn't pull it off with Smith and Weston, but we're leaving the door open. And I that may be why Clarence Thomas was so careful to say this is because in copyright, Congress was silent about secondary liability, so I'm not going to extend the precedent in copyright.

Copyright, I think it tries to continue to leave the door open when it comes to other torts and crimes that liability may stay there, like they're still preserving this option that if you could get a closer nexus, maybe you could go after YouTube, maybe, I see them grappling, I don't know what exactly they're going to do.

0:51:36 Thomas: So, I'm so curious that this was 9 -0, you said, with just feel so weird that like justices were totally cool just completely writing out of existence that whole law. That seems weird.

0:51:51 Jenessa: Of them were. The Sotomayor concurrence would have preserved the possibility of aiding and abetting happening. I think it still would have weakened it a lot, but it would have been possible to be secondarily liable. Yeah, seven out of nine were like, eh, that whole safe harbor in the DCMA, no even pretending that that still means anything. So yeah, seven outta nine, just meh.

0:51:56 Thomas: Okay. Wow. Interesting. Well, thanks for taking us through that. We'll keep an eye on any effects of that, but thanks for the breakdown.

0:52:26 Jenessa: Talking to you.

0:52:30 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:53:04 Jenessa: Just a very Thomas -y thing.

0:53:06 Thomas: Me. That dickhead. Someone's totally copying my crime I porn, for normal, lawful stuff? Stuff yeah

0:53:15 Jenessa: Isis hooray I join Join ISIS, we love violence, and