Will Lower Courts Find Ways Around Cox V. Sony? You Betcha

Key Takeaways

• TikTok case suffers from vague DMCA notice details
• Twitter court labels non‑removal as direct infringement
• Courts attempt to circumvent Cox v. Sony precedent
• Vicarious and contributory tests increasingly merge
• Ninth Circuit likely to clarify online infringement standards

Pulse Analysis

The Supreme Court’s 2024 decision in Cox v. Sony reshaped the copyright landscape by limiting the liability of online service providers that receive valid DMCA takedown notices but fail to act. By holding that such inaction does not automatically create direct infringement, the Court aimed to preserve the safe‑harbor protections of §512(c). However, the ruling left open how lower courts should interpret “volitional conduct” and “willful” behavior, prompting a wave of post‑Cox litigation as platforms grapple with uncertain compliance obligations.

In Michael Grecco Productions v. TikTok, the Central District of California highlighted the pitfalls of imprecise pleading. The plaintiff’s complaint listed 22 alleged infringing photos but omitted critical details about the timing and content of the DMCA notices, weakening both direct and vicarious infringement theories. The court noted the lack of specific knowledge and control, echoing Ninth Circuit precedents that demand concrete evidence of a host’s awareness. As a result, the case underscores the importance of meticulous notice documentation for copyright owners seeking to hold platforms accountable.

A year later, Grecco’s suit against Twitter took a markedly different doctrinal route. Judge Maame Ewusi‑Mensah Frimpong treated Twitter’s refusal to remove flagged material as a volitional act, effectively converting a traditional contributory claim into direct infringement. By doing so, the court sidestepped the Cox safeguard and suggested that failure to honor a takedown notice may itself satisfy the “willful” element. The decision also hinted that safe‑harbor defenses could collapse when platforms neglect DMCA procedures, signaling to tech companies that rigorous notice‑and‑takedown compliance may be essential to avoid heightened liability.