You Wouldn’t Help Someone Download a Car: Contributory Infringement as a Doctrine to Combat Online Music Piracy

Jackson Weist, Contributing Member 2024-2025
Intellectual Property and Computer Law Journal

I. Introduction

Music piracy alone costs the U.S. economy billions of dollars every year.[1] The rapidly increasing availability of digital copying technology has made music piracy the easiest and most accessible as it has ever been.[2] As a result, many of the major music labels have banded together in their efforts to reduce music piracy–not by going after the users themselves, but instead after the Internet Service Providers (ISPs). In 2019, the labels won a major judgment for $1 billion against the ISP Cox Communications, one of the largest verdicts for a copyright case in history.[3] With this success at their backs, the labels have now set their sights on Verizon, suing them in July 2024 for $2 billion.[4] The labels are accusing Verizon of contributory and vicarious copyright infringement, meaning that Verizon was not the actual infringer, but otherwise still facilitated and profited from their user’s infringement.[5] However, in February 2024 the Cox ruling was overturned in part, which may present issues for the labels against Verizon.[6]

While the labels also raise several points regarding the Digital Millenium Copyright Act, this article’s primary focus is on the contributory and vicarious infringement claims. Part II provides background on who the labels are, and their allegations against Verizon. Part III explores the legal doctrines behind these allegations; explaining copyright and copyright infringement and how they were applied in the prior case against Cox Communications. Part IV concludes by considering Verizon’s potential defenses and how this case may resolve.

II. Background

Music Labels

In exchange for the copyright to their songs, music labels provide a variety of different services to artists.[7] These services can range from simply financial support, to providing the artist with marketing, promotion, or even networking.[8] There are a number of different agreements that labels are able to reach with artists, and each label has different pros and cons for artists.[9] For example, there are agreements wherein the label owns the entire copyright to the song, ownership can be split between the label and the artist, or any variation that the artist and label agree upon.

Music Piracy

Music piracy via the internet operates largely on “peer-to-peer” file sharing networks where one user can send a file to another user on their network.[10] If a user downloads a file that is an .mp3 of a song which was illegally downloaded, that is copyright infringement.[11] Music piracy is a well-established system, whereby users will illegally download, copy, and distribute songs to each other via peer-to-peer file sharing networks.[12] Music piracy is also no stranger to the legal system, with major cases such as Napster and LimeWire taking place as recently as the 90s and early 2000s. Both cases involved peer-to-peer file sharing networks being found liable for copyright infringement, however, these cases focused on the networks themselves, as opposed to individual users or the ISPs providing users with internet access.[13]

Allegations

Major music labels UMG, Warner, Sony and a host of other middle to smaller sized labels allege that Verizon willfully contributed to their user’s copyright infringement system by not revoking their internet access after being alerted to their infringement.[14] The labels claim that they sent hundreds of thousands of notices to Verizon that listed specific users who were committing copyright infringement.[15] In many cases it was the same users with multiple infringement notices: over 500 Verizon users were subject to over 100 notices, and one user in particular was subject to over 4,000 different instances of infringement.[16] Verizon acknowledged that they received these notices, and thereby understood the infringement was taking place. However, they did not terminate their internet provider services with any users due to copyright infringement violations – nor did they ever explain why they did not.[17]

The labels’ allegations also highlight Verizon’s reasons for allowing their subscribers to continue infringing, including the benefit Verizon gained from the continued infringement.[18] The labels allege that users were drawn to Verizon and their service because of Verizon’s relaxed enforcement of infringement policies.[19] The labels also alleged that these subscribers would then purchase higher-tiered service packages in order to get better speeds for their illegal downloads.[20] This would mean–to the labels–that Verizon had direct financial benefits from their users’ infringement, as they would be drawn to their service and then purchase more expensive packages in order to more easily continue their infringement.[21]

III. Discussion

In the United States, copyright law provides the creators of artistic works with a limited monopoly over their creations.[22] Creators are given a number of exclusive rights to their work: control over reproduction of the work, derivative works, distribution of copies of the work, the work’s public performance and display, and digital transmission for sound recordings.[23] For example, copyright holders of songs hold the right to control where and when their songs are copied and distributed. The holder of a copyright is generally the original author, such as the author of a book or original creator of a song.[24] However, copyright ownership is freely transferable, meaning the original author can give ownership of a copyright to someone else if they want.[25] This is what allows music labels to create deals with artists where the label gets ownership of the artist’s songs in exchange for the variety of services labels provide to artists. That is why in this case it is the labels suing Verizon, and not the artists themselves.

Copyright infringement is simply when someone exercises one of the aforementioned rights for a work they do not own the copyright to.[26] Using music as an example, any unauthorized copying or distribution of songs is an infringement on their copyright absent a fair use defense. How is it, then, that the labels are able to sue Verizon for infringement, rather than going after the individual infringers themselves?

Contributory and Vicarious Infringement

Rather than doing the actual infringing, one can nonetheless be guilty of infringement for facilitating or otherwise aiding someone in their infringing behavior.[27] There are two different kinds of third-party liability in this situation–contributory and vicarious infringement.[28] These concepts are not found within the copyright statute itself, but instead are common law principles which have long been in practice.[29] Contributory infringement is where the defendant facilitates but does not personally benefit from the infringement.[30] There are three things that a plaintiff must show to make out a case of contributory infringement: (1) someone other than the defendant is directly infringing, (2) the defendant knows or has reason to know of the infringement, and (3) the defendant materially contributed to the infringement. [31]

Vicarious infringement is a slightly narrower avenue of liability than contributory infringement and focuses more on the defendant not only facilitating, but also personally benefitting from the infringement.[32] There are three elements a plaintiff must show to prove vicarious liability: (1) someone other than the defendant is directly infringing, (2) the defendant has the right and ability to supervise the direct infringers, and (3) the defendant financially benefits from the infringement.[33]

Cox Communications Case

The case against Verizon is not the first time the labels have gone after an ISP using the doctrines of contributory and vicarious infringement.[34] In 2019, the labels won a massive case against Cox Communications for $1 billion using the same theories of liability as in the Verizon case and essentially the same allegations.[35] On appeal in February 2024, the Fourth Circuit affirmed this ruling on contributory infringement, however, they reversed the ruling on vicarious liability.[36]

On vicarious liability, the Court ruled that Cox getting internet subscription fees was not enough to satisfy the element of financially benefiting from the infringement.[37] They reasoned that this financial benefit Cox received was not directly from the infringing behavior itself, as Cox received this money from both infringing and non-infringing users.[38] Cox had no financial incentive from the actual infringement itself, even if all infringement stopped on their service, there would be no change in the amount of money they were making from monthly users.[39] The Court also addressed the labels’ contention that users were willing to pay more for faster speeds specifically to pirate music faster.[40] The Court doubted this reasoning, stating that users may desire fast network speeds for a number of legal reasons such as streaming movies or playing video games.[41]

As a result, the Court reversed the vicarious infringement, affirmed the contributory infringement rulings, and remanded the case for a new trial in order to re-configure the damages award.[42]

IV. Conclusion

The reversal of vicarious liability in Cox may significantly harm the success of the labels’ claim in the Verizon case. Unless the labels are able to show more proof that Verizon’s allowance of infringement on their platform was to their direct financial benefit–as the Court in Cox desires–they may lose on this half of their case. The Verizon case also comes from New York, which means an appeal would place it in the Second Circuit. A different ruling for Verizon could potentially create a circuit split which would make this case, or a similar one, ripe for the Supreme Court to take up. However, given the Fourth Circuit affirmed the contributory infringement claim in Cox, it is still likely Verizon will have an uphill battle against the labels.

[1] Stephen E. Siwek, The True Cost of Sound Recording Piracy to the U.S. Economy, ɪɴꜱᴛɪᴛᴜᴛᴇ ꜰᴏʀ ᴘᴏʟɪᴄʏ ɪɴɴᴏᴠᴀᴛɪᴏɴ ᴄᴇɴᴛᴇʀ ꜰᴏʀ ᴛᴇᴄʜɴᴏʟᴏɢʏ ꜰʀᴇᴇᴅᴏᴍ (August 2007).

[2] Id.

[3] Bill Donohue, Major Labels’ $1B Piracy Verdict Against Cox Communications Overturned by Appeals Court, ʙɪʟʟʙᴏᴀʀᴅ (Feb. 20, 2024), https://www.billboard.com/business/business-news/record-labels-1-billion-piracy-lawsuit-verdict-cox-overturned-1235610900/ [https://perma.cc/AF88-PLJY].

[4] Complaint, UMG et al. v. Verizon et al. (S.D.N.Y. 2024) (No. 24-cv-5285).

[5] Id.

[6] Entertainment v. Cox Communs., inc., 93 F.4th 222 (4th Cir. 2024).

[7] Todd Brabec, Jeff Brabec, Music Publishers and What They Do, ᴀꜱᴄᴀᴘ, https://www.ascap.com/help/career-development/corner1 (last visited Oct. 25, 2024).

[8] Id.

[9] Id.

[10] Complaint, supra note 4, at 15.

[11] Id.

[12] Id.

[13] A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir.2001).

[14] Complaint, supra note 4, at 21.

[15] Id.

[16] Id at 20.

[17] Id.

[18] Id at 21-22.

[19] Id.