Knowledge, Intent, and Knowledge of Someone Else’s Intent

As yesterday’s post explained, contributory copyright liability emerged in the nineteenth century, but was not given a determinative test until 1970, in the Second Circuit’s opinion in Gershwin Publishing Corp. v. Columbia Artists Management, Inc. Under that test, a secondary actor could be held contributorily liable for someone else’s infringement if the actor had knowledge of the infringing activity and materially contributed to it.

That test was difficult enough to apply consistently on its own. But in 2005, the Supreme Court threw a further monkey wrench into the works when it resurrected Gershwin’s use of the term “inducement.” In a case involving the distribution of filesharing software to a group largely consisting of infringers, the Court stated the test for contributory liability as follows:

One infringes contributorily by intentionally inducing or encouraging direct infringement, see Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (C.A.2 1971)…. [T]hese doctrines of secondary liability emerged from common law principles and are well established in the law, [Sony Corp. v. Universal City Studios, 464 U.S.,] at 486 (Blackmun, J., dissenting); Kalem Co. v. Harper Brothers, 222 U.S. 55, 62–63 (1911); Gershwin Pub. Corp. v. Columbia Artists Management, supra, at 1162; 3 M. Nimmer & D. Nimmer, Copyright § 12.04[A] (2005).

MGM v. Grokster, 545 U.S. 913, 930–31 (2005).

For the past two decades it’s been unclear what the Grokster Court meant to do here. Was it reformulating the traditional test for contributory infringement to focus only on intentional inducement, rather than knowledge and material contribution? If so, then why the unqualified citations to Gershwin? If not, did this passage just add inducement as an additional form of indirect liability, or did it change Gershwin somehow?

Lower courts, for the most part, read Grokster the last way—inducement was not a complete substitution for the traditional material contribution test, but the traditional test didn’t come through unscathed either. If Grokster was just resurrecting “inducement” as a way of satisfying the second element of Gershwin, then why does Grokster talk about intent? There’s no mention of intent in Gershwin, only knowledge. If Grokster instead intended to add a third form of indirect liability to copyright law, why does the Court call it “contributor[y]” infringement?

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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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The Changing Federal and Wisconsin Law of Judicial Deference to Administrative Agencies

The matter of judicial deference to administrative agencies’ interpretations of law has seen notable developments both in Wisconsin and at the federal level in recent years. James B. Speta, the Elizabeth Froehling Horner professor at Northwestern University’s Pritzker School of Law, recently participated in a panel on the topic at the State Bar of Wisconsin’s Annual Meeting and Convention and developed his remarks into this guest post appearing on the Marquette Law School Faculty Blog on October 1, 2025.

Very near the end of its term last year, on June 28, 2024, the U.S. Supreme Court handed down one of its most significant administrative law decisions ever. Loper Bright Enterprises v. Raimondo (2024) overruled one of the Court’s own precedents, which it had relied upon for 40 years in more than a hundred decisions and which had been cited in nearly 20,000 lower court decisions. Yet not only was Loper Bright not a great surprise in federal administrative law, but it was in many ways anticipated by a decision issued by the Wisconsin Supreme Court interpreting that state’s administrative law six years earlier, Tetra Tech EC, Inc. v. Wisconsin Department of Revenue (2018).

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