U.S. Supreme Court Seeks Middle Ground Of Arguments in Cox Copyright Case

William Milliken, director in Sterne Kessler’s Trial & Appellate and Electronic Practice Groups, recently spoke to MLex on the arguments presented in Cox Communications, Inc. v. Sony Music Entertainment, Inc., the online copyright infringement case at the U.S. Supreme Court.

Milliken noted that the justices may rely on patent law as a backstop in their opinion given their “cautious” demeanor in the oral arguments. He said, “It seems to me that the petitioner, and to some extent some of the justices, were saying the version of secondary liability that is codified in the Patent Act is a relatively narrow version of secondary liability that doesn’t necessarily stretch as far as common law liability for aiding and abetting.”

Milliken added, “Contributory infringement is not super easy to prove in the patent law context. So you could imagine a decision in Sony’s favor here prompting litigants to argue that we should be thinking about contributory liability more expansively, not just in the copyright context, but in the patent context as well.”

During the arguments, Justice Neil Gorsuch suggested remand, for the appellate court to analyze the purpose of Cox’s actions to prove liability under common law aiding-and-abetting principles. Milliken commented, “That would be a more narrow holding that wouldn’t necessarily give rise to the consequences at either extreme that the justices seem to be worried about,” He continued, “But if you were to do that, then you’re back at square one because you’ve got to figure out, what does ‘purpose’ mean?”

Milliken stated, “I don’t know how much it would ultimately advance the ball. They might just be having the same argument under a slightly different semantic label in the Fourth Circuit, if that were to happen.”

With a divide on how to establish secondary liability in copyright infringement cases between the Fourth Circuit’s copyright holder-friendly position and the Second and Tenth circuits opposite take, there was only brief mention of the Ninth Circuit’s middle ground ruling. Milliken cast doubt on the Supreme Court going that direction stating, “You could imagine the court thinking, ‘That strikes a better balance than either one of these two extremes, so maybe we want to adopt something like that,’” He continued, “Of course, it wasn’t really expressly advocated for by either party below, and it was only Justice Roberts who mentioned it, so I don’t know how likely that is.”

Milliken noted, “They say that to predict Supreme Court arguments, all you’ve got to do is to be able to count to five. I feel like it’s hard to count to five in this case because there was such concern among so many justices with the potential implications of both positions.”

With the decision expected mid-2026, Milliken concluded, “It would not at all surprise me if the Court were to find some narrow sort of middle ground-type way out of this.”