Fresh caselaw from the U.S. Supreme Court may throw a wrench into the major music publishers’ lawsuit accusing Elon Musk’s X of widespread copyright infringement.
Publishers teamed up in 2023 to sue X (then known as Twitter) in federal court for refusing to license songs that users post on the platform. The suit has been in evidence discovery since a Nashville judge greenlit certain copyright claims in 2024, and it’s set to go to trial at the beginning of 2027.
That schedule might be changing, though, because of the Supreme Court’s decision last week in a separate music piracy case brought by the major record labels against internet service provider Cox. In that case, the justices ruled 9-0 that an internet platform cannot be held liable for its subscribers’ copyright violations unless the service is marketed or tailored specifically for infringement.
X’s lawyers now argue that this new binding precedent dooms the music publishers’ copyright claims. That’s because the publishers are asserting a similar theory of so-called contributory liability that was rejected in the Cox case — that is, that X is at fault for slow-walking its response to takedown requests and failing to terminate users who repeatedly post infringing music.
“If the Supreme Court had issued this opinion three years ago, X believes this court would have dismissed plaintiffs’ contributory-infringement claim in its entirety,” wrote X’s attorneys in a Friday (March 27) court filing. “Indeed, virtually every contributory-infringement case plaintiffs cited in opposing X’s motion to dismiss — including the Fourth Circuit case on which this court relied — is no longer good law.”
In a court response on Tuesday (March 31), the publishers’ lawyers said they “disagree with defendant’s assertion that the Cox decision means that this case should be dismissed.” Without going into detail, they argued that “plaintiffs’ allegations and the factual record support this case moving forward.”
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That said, the publishers acknowledged that the Cox ruling may have implications for their lawsuit, and they accepted X’s proposal to pause the discovery process while they file briefs digging deeper into the issue. A rep for the publishers declined to comment further on Tuesday (March 31).
The case is being brought by all three major publishers (Universal Music Publishing Group, Sony Music Publishing and Warner Chappell Music), plus a slew of indie publishers, including Concord, BMG, ABKCO, Kobalt, Reservoir and Wixen. Helmed by the National Music Publishers’ Association (NMPA), the suit alleges that X “profits handsomely” from infringement of compositions on its platform.
Most major social media companies, namely Meta, TikTok and Snapchat, have entered into blanket licensing agreements that provide a pre-cleared library of music for users to add to their posts. But X has long refused to do the same, maintaining that such broad licenses are not required under copyright law.
Last summer, it looked for a time as if X and the music publishers might strike a settlement after the long legal fight. Attorneys reported in court filings that they’d made “substantial progress” towards a deal, but they ultimately reached an impasse in the fall and went back to litigating.
With settlement talks on ice, X went on the offense this January by countersuing the NMPA for antitrust violations. X alleged that the publishers colluded to overwhelm its staff with hundreds of thousands of takedown requests as part of a “coercive campaign” to “force it to buy industrywide licenses it does not need.” That countersuit remains in its earliest stages.
