Contributory Copyright Liability Back Before the Supreme Court

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.

On Monday, the Supreme Court is going to hear oral argument in a significant copyright case, Cox Communications v. Sony Music Entertainment. The issue before the Court is the extent of contributory copyright infringement liability, something the Court has considered twice in recent decades, in the famous Betamax case (Sony v. Universal) in 1984, and in MGM v. Grokster in 2005.

I’m interested in almost any appellate case on copyright law, but I was interested enough in this one that I submitted an amicus brief to the Court arguing how it should come out. This post will introduce the dispute in Cox case and how it emerges from the history of contributory liability; tomorrow I’ll explain how the Supreme Court’s prior intervention in Grokster has added to the doctrinal confusion; and finally on Sunday I’ll explain why I decided to take the time to write an amicus brief. Hopefully on Monday I’ll have time to do a quick review of the argument.

The Cox case represents yet another battle between content owners and technology companies over the extent of indirect liability for copyright infringement, that is, liability internet service providers might have for the infringing acts of their users. For the past two decades, much of that fight has been over the conditional immunity for ISPs provided in 1998’s Digital Millennium Copyright Act, but the Cox case returns the debate to the underlying obligations imposed by copyright law itself: when does an intermediary like Cox have to stop infringers from using its service, and when can it safely regard those infringements as Somebody Else’s Problem?

The legal question here quickly enters some deep policy waters. Intermediary liability is recognized in many areas of the law, from torts to securities fraud to criminal law to all areas of intellectual property. To be effective, intermediary liability needs to strike a careful balance. First, the direct wrongdoers have to be, in some way, difficult to pursue—if they aren’t, then there’s no need to impose liability on someone else. And second, the intermediary has to have both the knowledge and the ability to narrowly target the bad acts without causing unnecessary spillover harms to beneficial activities.

Part of the problem in achieving that balance in the modern era is that the very notion of case-by-base balancing—by courts, by regulators, by almost anyone—has gotten a bad name. As I argued in my recent article The Grapes of Roth, that style of decision-making has faded, replaced by attempts to limit judicial discretion by rigidly following the text of either statutory provisions or multi-part tests.

Recently, however, I thought I detected some inclination by some of the justices to cut back against that trend and instead emphasize that the overall balance of intermediary liability emerges from the interplay of various considerations. So I decided to give that inclination whatever additional nudge I could with my brief.

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Climate litigation comes to Wisconsin

Wisconsin’s climate is warming. Despite its characterization in some quarters as a “climate haven” and destination for people migrating away from the worst impacts of climate change, the state is not immune to some of those same consequences. Even setting aside the significantly warming temperature here, the effects already include more frequent, intense precipitation events, increased flood risk, and decreased opportunities for winter recreation. Wisconsinites living in the southeastern part of the state will long remember the August 9-10, 2025 rainfall event that hammered some areas with over 14 inches of rain in under 24 hours, leading to widespread flooding. No doubt that was a “1,000-year storm” by reference to past experience. But when it comes to climate, the past is no longer a good guide to the future; indeed, some parts of the state have recently experienced multiple “500-year storms” or “500-year floods” within only a few years of time.

Perhaps it is no coincidence, then, that as the state increasingly feels the effects of climate change, climate law cases are similarly piling up here. From constitutional claims that seek to reform the implementation of energy law in the state, to litigation over the federal government’s efforts to claw back funding for the development of renewable energy resources, Wisconsin has become increasingly involved with legal battles over the climate. Interestingly, one of the cases prominently invokes a constitutional doctrine connected to the state’s water resources.

Dunn v. Public Service Commission. In August 2025, fifteen Wisconsin youth filed suit in the Circuit Court for Dane County alleging that certain Wisconsin statutes “create and perpetuate a fossil fuel-dominated electricity sector,” resulting in climate change-driven injuries to plaintiffs caused by air pollution, extreme weather events, and degradation of Wisconsin’s public trust (water) resources. Plaintiffs assert this amounts to a violation of the Wisconsin Constitution’s guarantees of life, liberty, and “a stable climate system.” That last phrase doesn’t appear in the constitution, but plaintiffs argue that it is inherent in the enumerated rights of life, liberty, and the pursuit of happiness. The case is a cousin of similar youth-led suits filed across the country, including a recent notable success in the Supreme Court of Montana.

The claims involve the work of the Wisconsin Public Service Commission (PSC), which is charged with approving the construction of new facilities that will generate electricity in the state. The Dunn plaintiffs allege that one Wisconsin statute unlawfully prohibits the PSC from considering the air pollution these proposed facilities will emit, leading to an artificial bias in favor of electricity generation from fossil fuels rather than renewable resources. A second set of challenged laws, plaintiffs allege, creates an artificial and unlawful ceiling on the amount of renewable energy generation the PSC may require energy providers to supply.

Alternatively – and particularly thought-provoking for those interested in Wisconsin water law – the plaintiffs allege that the same statutes also violate the Wisconsin public trust doctrine by depriving the plaintiffs of “the [constitutionally guaranteed] right to access, enjoy, and use public trust waters.” Over the years I have written several times in this space about the Wisconsin public trust doctrine, including its recent re-solidification after a period of erosion. In short, Wisconsin courts have interpreted Article IX, Section 1 of the state’s constitution to mean that Wisconsin holds its navigable waters in trust for its people, but the courts have had some difficulty operationalizing exactly what that duty requires in terms of day-to-day management of Wisconsin waters. The plaintiffs in Dunn argue that climate-driven damage to Wisconsin water resources enabled by the PSC’s (statutorily mandated) decisions related to electricity generation equates to a breach of the state’s constitutional public trust obligations. If a Wisconsin court accepts that framing, Dunn could become a nationally significant point of climate law evolution.

While Dunn targets the legal architecture of the state’s energy system, another pending case is focused on funding for the development of renewable energy generation in Wisconsin.

Maryland Clean Energy Center, et al. v. United States. Wisconsin (through the Wisconsin Economic Development Corporation, a public-private entity created in 2011 to replace the former Department of Commerce) has joined other states and organizations suing over EPA’s decision to terminate the “Solar for All” program, which is aimed at improving access to solar energy infrastructure in lower-income and disadvantaged communities. The program was slated to fund about $7 billion in solar projects; Wisconsin would have received over $60 million of that amount. The controversy involves the recent reconciliation law passed in July, which Wisconsin and the other plaintiffs argue only rescinds unobligated balances of the funding, and is not a retroactive repeal of funding already issued under the program. In a related case, EPA has called such claims “hopeless,” arguing that Congress provided reasonable grounds for getting rid of the entire program and its associated funding.

Enbridge Line 5. The Wisconsin-based dispute over the rerouting of Enbridge Line 5, an oil and gas pipeline that crosses northern Wisconsin on its way from Canada to Michigan, is another fossil fuel-related case with national relevance. Litigation over the pipeline, and the fossil fuel resources it transports, is ongoing in several different jurisdictions. In our state, the Bad River Band of Lake Superior Chippewa has challenged the Wisconsin Department of Natural Resources’ issuance of permits approving a 41-mile new section of the pipeline, arguing that the DNR’s approval fails to comply with Wisconsin’s environmental laws and will damage wetlands and water resources, thereby threatening the Band’s way of life. The case is currently pending before a Wisconsin administrative law judge.

Though Wisconsin isn’t the first state that comes to mind in a conversation about climate risk, the outcome of these cases will be very significant to the development of climate law both within and outside the state.

Continue ReadingClimate litigation comes to Wisconsin

A Shout-Out to Marquette Members of the Annual AALS Pro Bono Honor Roll

The Association of American Law Schools (AALS), through its Pro Bono & Access to Justice Section, will soon release its fourth annual Pro Bono Honor Roll. This national recognition celebrates law students, staff, and faculty for their outstanding contributions to pro bono legal services.

This year, Marquette University Law School is proud to recognize Karli Ring, a second-year law student, Mindy Schroeder, program assistant to the Marquette Volunteer Legal Clinics (MVLC), and Bruce Boyden, associate professor of law. A word of two about their pro bono efforts will help illustrate the broader efforts of the Marquette Law School community.

Karli Ring, a second-year law student, is a reliable presence at the MVLC, often stepping in at the last minute when other students have been unable to cover a shift. This fall, she committed to a standing weekly  shift at the United Community Center, where she helps lead operations. Karli takes on a wide range of responsibilities—setting up clinic space, prescreening clients, identifying legal issues, matching clients with volunteer teams, and making referrals as needed. A U.S. Army veteran (she served as a paratrooper), Karli brings discipline and a deep commitment to public service. She is inclined toward litigation after law school. In the meantime, she remains an essential member of the MVLC team.

Mindy Schroeder is at the heart of the United Community Center branch of the MVLC, one of the busiest clinic sites. Each week, this two-hour clinic serves dozens of clients, nearly half of whom are monolingual Spanish-speakers, and offers help with immigration matters as well as family and civil issues. Mindy oversees the entire operation—coordinating volunteers, managing client flow, and ensuring that every person who walks through the door feels welcome and supported. Her bilingual skills allow her to connect directly with Spanish-speaking clients, while her care for both clients and volunteers creates a positive, professional, and highly efficient environment. Thanks to Mindy’s steady leadership and top-notch style, this fast-paced clinic runs smoothly and remains a trusted resource for the community.

Bruce Boyden has championed the pro bono involvement of both lawyers and law students through his work on the Eastern District of Wisconsin Bar Association’s Pro Bono Committee. As part of this effort, law students assist the committee by reviewing Section 1983 cases, filed by incarcerated individuals, that the court has designated as cases that would especially benefit from the assistance of an attorney. Students review pleadings and discovery and then draft memos summarizing the cases. This work helps committee members evaluate cases as they seek to secure pro bono representation for each such plaintiff.

We extend our sincere congratulations and gratitude to Karli Ring, Mindy Schroeder, and Professor Boyden, along with all members of the Marquette community who seek to “Be The Difference” through pro bono efforts.

Read about past awardees here (2022), here (2023), and here (2024).

Continue ReadingA Shout-Out to Marquette Members of the Annual AALS Pro Bono Honor Roll
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