A California federal judge’s decision allowing authors to expand their copyright case against Meta collided almost immediately Wednesday with a Supreme Court ruling that is likely to test the newly added theory, and contributory infringement claims against artificial intelligence companies more broadly.
A California federal judge’s decision allowing authors to expand their copyright case against Meta collided almost immediately Wednesday with a Supreme Court ruling that is likely to test the newly added theory. Copyright owners hoping to hold online networks and platforms responsible for end user infringement now face a higher bar in the US — a development that could have a ripple effect across litigation pending against AI developers.
US District Judge Vince Chhabria of the Northern District of California on Wednesday granted Richard Kadrey and other author-plaintiffs leave to add a contributory copyright infringement claim against Meta, despite his heavy criticism of their failure to make the allegation earlier.
The ruling (see here) could bolster the authors’ case that the defendant, while downloading pirated books from so-called shadow libraries via BitTorrent, simultaneously uploaded those works to other users — facilitating infringement.
Hours earlier, the US Supreme Court significantly tightened the legal standard for contributory liability (see here) in a case involving use of the same protocol to pirate musical works online.
Music publisher plaintiffs led by Sony failed to persuade the justices that by continuing to provide subscribers with internet access, internet service provider (ISP) Cox Communications contributed materially to infringement.
Instead, Justice Clarence Thomas wrote, “the provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement,” provable only upon showing that infringement was “affirmatively” induced or that the service, itself, is “tailored to infringement.”
Meta has already demonstrated it views the holding as impactful: later Wednesday, it gave notice of the decision in a copyright case filed against it by Entrepreneur Media, LLC, which is also assigned to Chhabria, alleges torrenting, and is awaiting his ruling on Meta’s request for dismissal.
“Meta is prepared to submit supplemental briefing addressing the application of Cox to the pending motion should the Court find it helpful,” the filing states.
At the same time, Cox’s applicability could be limited: the BitTorrent users complained of by Sony were ISP subscribers, whereas Kadrey and his co-plaintiffs single out Meta’s own use of the protocol as problematic, and actionable. The Supreme Court’s decision could have broader implications in AI cases alleging infringing chatbot outputs.
— Torrenting at the fore —
Following a summary judgment of fair use last summer on claims of direct infringement based on training of Meta’s large language model Llama, Tuesday’s order means Kadrey’s case now includes theories of direct infringement based on the distribution of copyrighted works via BitTorrent and contributory infringement based on the enablement of third-party copying via the same protocol.
The latter claim is factually specific and technologically grounded.
To that end, the plaintiffs say Meta’s actions did not merely involve passive downloading. Because BitTorrent requires users to upload pieces of files while downloading them, Meta — by virtue of its BitTorrent use — must necessarily redistribute copyrighted works to other protocol participants, according to the authors (see here).
Chhabria found that the theory could, and should, have been raised earlier, dismissing as “a bunch of doubletalk” explanations for the delay by plaintiffs’ counsel.
But in allowing a fourth amended complaint, he hinted at the potential importance of the claim to the case — lamenting that failing to include it, now, could foreclose a distinct avenue of recovery for members if and when a class is later certified.
— ‘Inherent characteristic’ —
That same opening was narrowed, at almost the same time, on the other side of the country.
Justice Clarence Thomas rejected Sony’s looser knowledge-plus-failure-to-act theory, aligning contributory liability more closely with the frameworks articulated by the Supreme Court in MGM v. Grokster and Sony v. Universal City Studios.
In the former, the justices said inducement liability attaches only when infringement is intentionally encouraged, with words or actions; in the latter, they found that when a product is widely used for legitimate purposes or capable of substantial non-infringing uses, its distribution is not itself unlawful.
That could put Meta’s BitTorrent activity — and critically, its intent — front and center, with plaintiffs arguing the company knowingly leveraged a piracy-dependent system to obtain copyrighted works at scale.
They could even point to the opening lines of the Cox opinion, which says the Copyright Act empowers copyright holders to sue infringers who use the internet to “illegally share copyrighted works, such as songs and movies.”
Look to Meta, in response, to characterize BitTorrent as a general-purpose file transfer protocol with lawful uses, and that any uploading was an automatic, incidental feature rather than an intended outcome, in keeping with the types of activities Thomas found nonactionable on Wednesday.
Meta has already (see here) argued that fair use applies to the authors’ distribution claims, where the “potential for a peer to upload data to other peers in the network is an inherent characteristic of the BitTorrent protocol used to download datasets used for the transformative purpose of research, development and training of AI models.”
— Weaker, not dead —
Other cases against AI developers could be more directly affected by the Supreme Court’s holding.
A first amended complaint by Concord Music Group and others against Anthropic, for example, maintains that because the Claude developer “knowingly and purposefully enables, encourages, and profits from massive copyright infringement by its users, it is secondarily liable for the infringing acts of its users under well-established theories of contributory infringement and vicarious infringement.”
AI companies accused of contributory infringement in their chatbot outputs may argue that they are like the service providers shielded by the new decision in Cox — a parallel that may be harder to draw in the cases focused on torrenting.
That said, contributory infringement is not the central claim in the Concord case, suggesting Cox is unlikely to make or break it.
It will likely take time to sort out Cox’s impact. But Professor Zvi Rosen of Franklin Pierce School of Law, who drafted an amicus brief in support of Sony, is skeptical that “lower courts are necessarily going to torpedo an entire area of doctrine.”
"I do think contributory claims are weaker. But it doesn't mean they're dead. It just means there's a little more on the other side of the ledger,” he tells MLex.
The Copyright Alliance, also a Sony amicus, was similarly reserved in its reaction to the Wednesday ruling.
While confessing a deep disappointment in the justices' “misunderstanding of copyright law,” the group construed the holding as narrow, applying “only to internet service providers (ISPs) that do not copy, distribute, or host infringing material or control or induce such activity.”
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