Cox v. Sony Music

Solicitor General D. John Sauer.

Two months ago, the solicitor general moved to participate in the Cox v. Sony Music oral argument on behalf of the government. Now, only weeks out from that high-stakes Supreme Court showdown, the appearance has officially been confirmed.

Word of said confirmation made its way into the appropriate docket today, just shy of one year after Solicitor General D. John Sauer was “invited to file a brief in this case expressing the views of the United States.”

As we reported soon thereafter – and as Cox has emphasized – the internet-access-minded government has supported the petitioners’ position from the outset.

“Losing internet access is a serious consequence, as the internet has become an essential feature of modern life,” the government wrote in its May amicus brief. “And because a single internet connection might be used by an entire family—or, in the case of coffee shops, hospitals, universities, and the like, by hundreds of downstream users—the decision below could cause numerous non-infringing users to lose their internet access.”

Then, September brought the initially mentioned government request to back Cox during the (subsequently scheduled) December 1st argument – with the ISP enabling the solicitor general’s participation by giving up some of its own argument time.

“Accordingly, if this motion were granted, the argument time would be divided as follows: 20 minutes for petitioners, 10 minutes for the United States, and 30 minutes for respondents,” the solicitor general indicated.

One needn’t be an attorney to recognize the clear-cut upside in sharing the argument spotlight with the government; Cox hasn’t exactly hesitated to note the support, either.

“Cox and the Government have laid out a simple culpable-conduct rule derived from this Court’s copyright and aiding-and-abetting cases: Contributory liability depends on proof of an affirmative act demonstrating a culpable intent to further infringement,” the ISP penned in a reply brief last week.

Also as mentioned, the solicitor general’s appearance has been confirmed; the corresponding order today specifically approved the requests “for leave to participate in oral argument as amicus curiae and for divided argument.”

With that, we have an even better idea of what the ultra-important outing will look like when it takes place in three weeks. There’s definitely a lot on the line in the billion-dollar case itself, and there’s more than that riding on the courtroom confrontation in terms of different infringement actions and the bigger-picture future of ISP liability.