The title of this article is based upon the view that, in its unanimous Cox v Sony decision, the Supreme Court gutted the safe harbor defense provision of the Digital Millennium Copyright Act (DMCA) and stripped it of all practical effect.

Post-Cox, an online service provider (OSP) subject to DMCA need make little effort to qualify for that defense to alleged copyright infringement, because SCOTUS has provided a new and much broader non-inducement safe harbor—to avoid liability, the provider of a product or service capable substantial noninfringing uses need merely avoid inducing its customers to commit direct infringement, or building in features that facilitate infringement. In other words, just do nothing.

The DMCA Safe Harbor required some OSP action to qualify for the defense. The SCOTUS safe harbor merely requires refraining from inducement or facilitation of a customer’s infringement.

As the article developed, the thought occurred that another title might have been “Copyright Fought the Internet, and the Internet Won”, a riff on the 1966 Top Ten hit by the Bobby Fuller Four, “I Fought the Law” [And the Law Won]. Rock on.

Wikipedia has this to say about jury nullification: “Jury nullification, also known as jury equity or as a perverse verdict, is a decision by the jury in a criminal trial resulting in a verdict of not guilty even though they think a defendant has broken the law. The jury’s reasons may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant’s case, that the punishment for breaking the law is too harsh, or general frustrations with the criminal justice system.”

The Cox decision represents a rare example of SCOTUS nullification. Everyone is familiar with the fact that the Supreme Court can strike down a law on Constitutional grounds. But it is much rarer for the Court to neuter an enacted law for reasons unrelated to Constitutional violation, and in Cox the result seems based upon the fact that upholding the Fourth Circuit decision would allow rights holders to have an enormous litigation club in the form of massive statutory damages, and that the overall consequence would have been termination of Internet access to large numbers of non-infringing users. The Court has here exercised not just its legal but its equitable powers.

Unlike jury nullification, which only pertains to a single case. SCOTUS nullification of the DMCA safe harbor will affect all future secondary liability cases brought under the DMCA (if there are any more, after this decisive ruling). In Cox, while the Court called balls and strikes, it also changed the rules of the game—or at last exploited a Congressional-provided loophole.

The full article (click to view) consists of:

• A brief discussion of the SCOTUS holding, the simple declaration that, “The provider of a service is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement, which can be shown only if the party induced the infringement or the provided service is tailored to that infringement.”
• A short history of the DMCA, especially its notice-and-takedown requirements (which now result in billions of notices and responsive takedowns annually), and the safe harbor provision just rendered meaningless.
• The facts and litigation history of the case. Of particular note is the decision of the Trump Administration to have the Solicitor General (SG) weigh in on behalf of Cox by urging SCOTUS denial of Sony’s appeal, and by urging it to reverse the Fourth Circuit decision to impose $1billion in damages on Cox. In this and other matters, copyright protection does not appear to be a high priority for the Trump Administration.
• A detailed review of the oral arguments, which heard arguments from Cox, the SG, and Sony. The back-and-forth reveals multiple justices seeking some assurance that their likely decision to reverse would not entirely strip the DMCA’s safe harbor provision of all practical meaning. Despite lukewarm responses providing little to buttress that hope, they went ahead and did so anyway—clearly understanding the consequences.
  
  One clear theme that emerged in that dialogue was that the 1998 DMCA, enacted at a time when the public Internet was primitive and its evolution unknown, now applies to a public Telecommunications resource deemed essential. Deputy SG Malcolm Stewart argued that the lower court decision was simply too harsh, given the centrality of the Internet, “The…approach of terminating all access to the Internet based on infringement, it seems extremely overbroad given the centrality of the Internet to modern life and given the First Amendment.”
  
  Justice Alito echoed this same sentiment when he admonished counsel for Sony, “Mr. Clement, the United States tells us that the decision of the Fourth Circuit in your opinion—your position would threaten universal Internet access and emphasizes the problems that would be—that are encountered when that decision in your position are applied to a university account shared by thousands of students, maybe 50,000 students and tens of thousands of staff members or regional ISP. And I really don’t see how your position works in that context, but maybe you can explain how it could.”
  
  What is most remarkable about the unanimous decision is there is no enumerated right to Internet access in the U.S. Constitution, yet SCOTUS has just determined that the potential denial of Internet access would be so inequitable that it justifies scuttling the DMCA safe harbor and adopting a narrow and absolute inducement standard for OSPs.
  
  Another theme in the dialogue is that, if Congress is unhappy with the Court’s Cox decision, it can revisit the DMCA and insert its own standard for secondary liability (given current partisan gridlock, this is most unlikely). In effect, SCOTUS is saying that this is a “major question” that only Congress can resolve—while simultaneously promulgating its own “only inducement” answer that undoes the balance Congress sought to weave into the DMCA.
  
  As the oral arguments wrapped up, Justice Sotomayor, clearly recognizing that this was a hard case that could make bad (or at least unsettling) law, expressed her discomfort to Clement, “We are being put to two extremes here… How do we announce a rule that deals with those two extremes?”
  
  Alas, the unanimous verdict demonstrated that there was no way to square that circle. The extreme of requiring Cox to terminate Internet access to tens of thousands was avoided.in exchange for rendering the DMCA’s safe harbor a pointless irrelevance.
• In the unanimous verdict authored by Justice Clarence Thomas, SCOTUS reversed the Fourth Circuit’s $1 billion contributory copyright infringement judgment against Cox and held, “The provider of a service is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement, which can be shown only if the party induced the infringement or the provided service is tailored to that infringement (emphasis added); Cox neither induced its users’ infringement nor provided a service tailored to infringement; accordingly, Cox is not contributorily liable for the infringement of Sony’s copyrights.”
  
  As further detailed, additional observations in the opinion made clear that the wreckage of the DMCA was irretrievable. Of particular note was the declaration that, “Although our precedents have recognized specific forms of secondary copyright liability that predated the Copyright Act, we are loath to expand such liability beyond those precedents.” If Congress is chagrined by the scuttling of the safe harbor provision, the ball is in its court to require OSPs to terminate Internet access to multitudes served by a single IP address.
  
  Justice Sotomayor, while concurring, still expressed concern in a separate opinion that the Court’s decision was too extreme, stating, “The majority holds that Cox is not liable solely because its conduct does not fall within the two theories of secondary liability previously applied by this Court. In so doing, the majority, without any meaningful explanation, unnecessarily limits secondary liability even though this Court’s precedents have left open the possibility that other common-law theories of such liability, like aiding and abetting, could apply in the copyright context. By ignoring those past decisions, the majority also upends the statutory incentive structure that Congress created…. The majority’s new rule completely upends that balance and consigns the safe harbor provision to obsolescence... After today, however, ISPs no longer face any realistic probability of secondary liability for copyright infringement, regardless of whether they take steps to address infringement on their networks and regardless of what they know about their users’ activity… The majority’s decision thus permits ISPs to sell an internet connection to every single infringer who wants one without fear of liability and without lifting a finger to prevent infringement. It also means that Cox is free to abandon its current policy of responding to copyright infringement. As Cox’s counsel conceded at oral argument, under the rule the majority adopts today, the safe harbor provision will not “d[o] anything at all” going forward. Congress did not enact the safe harbor just so that this Court could eviscerate it.”
  
  However, rather than stopping there, Sotomayor continues and explains why Cox, despite its lax and somewhat contemptuous treatment of the safe harbor requirements, could not have been found guilty of secondary infringement under an aiding and abetting theory. She thus undermined her own argument and confirmed that the Court has eviscerated the DMCA safe harbor completely and permanently.
• The conclusion of the article speculates on the future of the DMCA and copyright law generally.
  
  With the current Congress incapable of funding airport security, the prospects of a policy response to Cox in an election year are close to zero (in truth, less than zero).
  
  That’s likely good, as the DMCA was a flawed attempt to address Internet content distribution in the Web’s earliest days. It should not dictate actions taken after almost thirty years of technical and business developments.
  
  Should Congress ever decide to consider a new approach to online secondary copyright infringement, the issue of applicable statutory damages should be addressed up front. While potential penalties of up to $150,000 per copy were intended to be a punitive deterrent, these amounts are at wide variance with current economic reality, when the content world has transitioned from distribution of physical copies to providing subscription streaming services as its primary business model. A single music file can be downloaded in the U.S. for no more than 99 cents, and an artist earns just a fraction of a penny for a streamed song; new movies can be rented for $4 a viewing by an entire family.
  
  Such massive potential penalties have arguably become counterproductive in the courtroom. While it should make no difference from a legal perspective, one wonders what SCOTUS would have decided in Cox had the ISP faced a few $million in monetary penalties rather than $1 billion—that is, a penalty that stung but did not represent an existential threat to it and other ISPs? The certainty of massive statutory damages against Cox if the lower court was upheld, and the resulting broad denials of essential Internet access by ISPs and other intermediaries, clearly had a major impact on the Court’s ultimate decision.
  
  A major market change that may bode well for a revised approach to digital copyright policy is that in the past three decades, the tech and content/copyright sectors have converged, dissolving the barrier between a content industry establishment and disruptive Internet upstarts that existed when the DMCA was enacted. Netflix, Amazon, Alphabet, Apple, Microsoft, Meta, and others—including Sony—all straddle the space between creation and distribution, and thus may be positioned to coalesce around a more balanced approach to protecting copyright in a world where the marginal cost of delivering a given piece of content approaches zero. Perhaps the CEOs of these companies should order their content and distribution lawyers to be locked in a room until they emerge with something that better accords with digital and economic realities. (Of course, the public interest should be carefully considered as well before any new law is enacted.)
  
  Finally, as AI becomes ubiquitous, the most important copyright policy matter to be addressed is not online protection, but whether copyright protection should remain restricted to human authors and inventors. The mega-corporations that create and distribute mass content will never utilize AI-produced works if they cannot utilize copyright to protect their investment.
  
  Article I, Section 8, Clause 8 of the US Constitution is the IP clause, and it states:
  
  [The Congress shall have Power . . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
  
  Can Chat GPT, Open AI, Claude, or another language model—or a company prompting it to generate desired content—ever be an author or inventor? Whatever the future response to the DMCA’s SCOTUS scuttling, the applicability of copyright to works employing high levels of AI assistance will be the central question for copyright policy in the coming years of this digital millennium.
  
  In its January 2025 report, “Copyright and Artificial Intelligence Part 2: Copyrightability”, the U.S. Copyright Office opined that human creative involvement remained paramount, but that the extent required could not be generalized. It said in part:
  
  — Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
  
  — Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
  
  — Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
  
  That approach is worthwhile but less than fully satisfying. A case-by-case analytical approach may be prudent in the early stages of AI development and use, but at some point, Congress may wish to enact a bright-line test that narrows the basis for litigation. Further, regarding the use of prompts to generate content, the CO’s reference to “the functioning of current generally available technology” is a reminder that Moore’s law dictates a speed of technological development that far outpaces the slow march of legislation and jurisprudence. Generally available AI technology will look very different within a few years, and either the CO, Congress, or the courts may decide that AI content produced with minimum prompting may qualify for copyright. The ultimate resolution will greatly influence the degree to which humans participate in the digital entertainment sector.
  
  The DMCA safe harbor is gone, replaced by a far more extensive “inducement and facilitation only” SCOTUS safe harbor.
  
  Long live copyright as an incentive for the progress of science and the useful arts.