No, it was an even older one about sales liability. I can check the audio again at some point, but it was a non-tech case

Cox lost at trial, $1 billion judgment. That got reduced on appeal, but the appeals court said that (roughly) knowing that someone is probably going to use your service to do the bad thing is enough to make you liable too.

That runs in the face of pretty much all established 2ary liability law.

There’s a concept in law called secondary liability—even if you yourself did not do the bad thing, you may still be on the hook for someone else doing the bad thing. Getting a safe harbor just means you never have to ask that question, as you have an automatic shield.

I got pulled aside to a second conversation and unfortunately missed the last few minutes!

Argument wrapped. A lot to chew on.

Sotomayor: ok so you could cut off an entire 50k regional ISP
Sony: Well you could create a rule that doesn't allow that
Sotomayor: please do.
Sony: no, you
Sotomayor: ...

Dueling IP scholars briefs mentioned! Drink!

But yes, agreed, Clement is really having a hard time finding his footing here

Kavanaugh (?): Separation of powers argument--we read implied rights of action quite narrowly, and nothing in this statute *creates* a secondary liability right of action.

I can smell the flop sweat from here

If only they'd bothered making these actual distinctions during their congressional testimony (they did not, much to my annoyance)

Sony: well just don't let them use BitTorrent
Me: ...
Sony: also we've never sued universities
Me: (stares directly at the camera like we're on the office)

Gorsuch (?): ok so what about like, university dorms that are all on one account
Sony: have a stern word with the university
Gorsuch: ...

Sotomayor: here's all out intent standards.
Sony: uh huh
Sotomayor: Your proposed standard falls short on all three of them