The Cox v. Sony Music Entertainment argument just ended as I started this; here are my immediate takeaways. (For more detail on the case, see my blog series over the weekend: Part 1 on the contributory infringement test, Part 2 on the confusion about the required mental state after Grokster, and Part 3 on the connections between contributory copyright infringement doctrine and the common law.)

It’s almost always difficult to predict a result, or even votes, based on the oral argument, and I haven’t even had the opportunity to read the transcript yet. But here’s a few things that stood out to me:

1. Much of the argument focused on the required state of mind for liability. There was basically no appetite from anyone for adopting the Restatement/Gershwin standard of knowledge of the wrongdoing. Cox, represented by Joshua Rosenkranz, and the Solicitor General’s office, represented by Malcolm Stewart, argued that contributory liability requires a showing that the defendant shared the same purpose as the direct infringer, and wanted to accomplish the same goal — a standard drawn from the many criminal aiding and abetting cases cited in Twitter. A number of questions from the justices seemed to support this idea, leading Justice Gorsuch at one point to conclude, perhaps optimistically, that a consensus view had emerged on that. In response, Paul Clement, representing the music companies, argued that intent was the correct standard, defining intent as including, under Restatement 2d of Torts sec. 8A, substantial certainty that harm to the plaintiff will result from one’s actions.