How did the court handle the apparent violations of the DMCA, with Cox ignoring more than a hundred and sixty thousand copyright infringement notices and giving users chance after chance after chance, rather than terminating their service? And there was evidence that the Cox manager who was overseeing compliance told his team to ignore the DMCA, using foul language to say that.

That's clearly all correct.

Justice Thomas, who wrote the opinion for the majority of the court, simply chose to ignore the Digital Millennium Copyright Act.

In essence, he said that Cox had failed to comply with the safe harbor in the Digital Millennium Copyright Act because they did not have a program in place to comply with copyright infringement notices.

But then he said, and this is an important part, he said, "But that does not prove the case for the recording companies." He said, "A mere failure to establish that you're entitled to take advantage of the safe harbor defense of the Digital Millennium Copyright Act does not establish the affirmative grounds for contributory copyright infringement." And then he went through an analysis of what he viewed to be the elements of a cause of action for contributory copyright infringement.

He found that there was an affirmative action required on the part of the defendant to be accused of contributory copyright infringement.

And that's what surprised, I think, a lot of us.

How much does this decision hamper the music industry's efforts to combat online piracy? Are there any other options available to music labels now?

I mean, it, it, it didn't seem like it was impossible for Cox to cut off some of these people.

That's clearly all correct.

Justice Thomas, who wrote the opinion for the majority of the court, simply chose to ignore the Digital Millennium Copyright Act.

In essence, he said that Cox had failed to comply with the safe harbor in the Digital Millennium Copyright Act because they did not have a program in place to comply with copyright, uh, infringement notices.

But then he said, and this is an important part, he said, "But that does not prove the case for the recording companies." He said, "A mere failure to establish that you're entitled to take advantage of the safe harbor defense of the Digital Millennium Copyright Act, it does not establish the affirmative grounds for contributory copyright infringement." And then he went through an analysis of what he viewed to be the elements of a cause of action for contributory copyright infringement, and he found, and this is the important part of his decision, he found that there was an affirmative action required on the part of the defendant to be accused of contributory copyright infringement, and that's what surprised, I think, a lot of us.

There is a long history of decisions in the circuit courts and in the Supreme Court stretching back to nineteen twelve in which courts have allowed contributory copyright infringement cases go forward in situations, factual situations, which has seemed to be nothing more than providing a product or a service.

And Justice Thomas starts off by recharacterizing those cases as our findings that a company cannot be liable as a copyright infringer for merely providing a service to the general public, even with knowledge that it will be used by some copyright infringers.

So then why-

Tell us about the sort of IP regime that's special to the Olympics.

Well, it's a great legal question.

And every couple of years when we either have the Winter Olympics or Summer Olympics, the Olympic Committee literally sends out notices about six months ahead of time warning people.

And they post things on their Web site and they are very aggressive in enforcing their intellectual property rights.

But it's a completely different regime than what we usually talk about, June.

It's not under the Lanham Act, which is the name of the United States trademark laws.

A number of years ago, Congress passed a law entitled the Ted Stevens Olympic and Amateur Sports Act.

In the

to use the word that one of the justices

used to describe it.

They had originally started off and say, well, if we get three notices about a particular user, we're going to tell them we're cutting off their service.

That rose gradually over time from being a three strikes you're out policy to being a 13 strikes and you're out policy.

the 13 strikes reset every six months.

So if you didn't get to 13 within a six-month period, you went back to zero.

They also capped the number of notices that they were accepting from recording companies at 300 a day.

So, Terry, where do you think the justices will come out here?

Why are they fair

to use the word that one of the justices used to describe it? They had originally started off and say, well, if we get three notices about a particular user, we're going to tell them we're cutting off their service.

That rose gradually over time from being a three strikes you're out policy.

to being a 13 strikes and you're out policy.

And the 13 strikes reset every six months.

So if you didn't get to 13 within a six month period, you went back to zero.

Or if you got kicked off after six months off, you got put back on.

I've listened to.

So then do you think that they'll send it back to the lower court with an instruction?

I just don't know what they're going to do here.

I have to be frank.

This is one of the more opaque oral arguments I've listened to.

The other commentators have argued that the court might be looking for some sort of middle ground.

Indeed, I think it was Justice Sotomayor commented at one point during the argument that the the court was being forced to choose between two extreme positions.

And in particular, Justice Sotomayor, who was very skeptical of Cox's position, but also didn't quite like the extreme argument being made by Sony Music Corp and the recording company, seemed really perplexed as to what to do, genuinely perplexed.

So then do you think that they'll send it back to the lower court with an instruction?

Terry, will you explain the test used here for copyright infringement?

So in order to prove up a case of copyright infringement, you have to show ownership of a registered copyright and proof of infringement.

The test for infringement in the Ninth Circuit, where this case takes place, is well developed over many years, a little bit complicated, but very well developed.

And it's a two-part test with respect to substantial similarity.

First, there is what's known as the extrinsic test, which is really an objective test, a fancy word for, say, objective test and that's undertaken by the court by the judge who determines whether or not there are objective elements that have been copied that constitute the literary works expression in this case the photographic works expression so is there reason to believe that a protected element of the work was copied now this is easier to do in my opinion in cases of photographs than in movies, television shows, plays, books, where small portions are copied and they slightly change the characters or the setting or the plot.

And there, judges are really presented with a challenging first step in this infringement process that they have to undertake to determine whether or not protected elements of copyright were infringed.

And they get help from experts on that.

Does this stand for any broader principle about tattoos of copyrighted works?

But if the recipe can't be copyrighted, what are the allegations or causes of action you could even bring? So

it's not that recipes can't be copyrighted.

In theory, they can be copyrighted.

It's just very hard to do that.

And to the extent that you have copyright protection, it almost has to be an exact duplicate of the recipe to constitute copyright infringement.

A lot of what's going on here is moral posturing.

There is this background noise that is being created that somehow Brooke Bellamy is not being honest, is stealing other people's works, won't say being a fraud, but that's the implication that people want to draw in a very competitive industry in which people are fighting for book sales and attention.

And

Machines

have no heirs.

There's nobody who inherits from a machine in part because it doesn't have a death.

It doesn't have a lifetime.

And yet there's a provision in there that says the heirs of authors obtain their rights.

So how do you account for that? And then there's also provision in the text about the nationality and domicile of authors.

Yet machines don't have nationality.

And

Given

that lack of dispute on facts, it was really then driven by the law.

And the interesting thing about the D.C. Circuit's opinion is which differed from a copyright office decision in the district court decision, is a laser-like focus by the D.C.

Circuit on the text of the Copyright Act of 1976.

And this is sort of the trend in appellate courts and the Supreme Court these days, what is referred to by lawyers as textual analysis.

It is no longer some right-wing theory propagated by Justice Scalia and It is this concept of textual literalism has just seized the appellate courts and the Supreme Court.

You see both the so-called liberal justice of the Supreme Court and the conservative justices on the Supreme Court agreeing that you apply this sort of textual analysis whenever there's a statute of constitution.

And