Neil Gorsuch Questions Broad Expansion of Secondary Liability in Cox Communications Case

Judicial Caution on Secondary Liability

• ⚠️ Justice Gorsuch expresses concern that Congress has not defined the contours of secondary liability, suggesting this should be a "flag of caution" against overly broad expansion.
• 💡 He questions whether expanding liability too broadly would be a "cautionary tale" to avoid going beyond common law principles.

Precedents and Implied Causes of Action

• ⚖️ The discussion references Central Bank of Denver, where the court refused to imply aiding and abetting liability under the Securities Exchange Act, noting potential tension with the current case.
• ❓ Gorsuch probes the idea of creating a "made-up cause of action" and then adding a "bow on the made-up cause of action," distinguishing it from other legal contexts.
• 📜 The argument is made that given existing text and court precedents, it is "too late to sort of say this is all like an implied cause of action."

Interpretation of Fourth Circuit Ruling

• 🧐 There's a disagreement on the interpretation of a Fourth Circuit case, with one side believing it applied a "substantial certainty test" and the other reading it differently.
• 📚 The debate touches upon whether the Fourth Circuit's application of the substantial certainty test was correct, with differing opinions from intellectual property scholars.
• 📍 The discussion delves into whether the knowledge of infringement was applied "in gross" versus to specific users, referencing the BMG decision and its implications for identifying customers or account holders.

Common Law and Substantial Certainty

• 📜 The concept of common law and its application to substantial certainty is debated, particularly concerning residential customers and account holders.
• 🤝 The idea that knowing someone in a group was involved, without doing anything, is questioned as not meeting the threshold of substantial certainty.
• 🚫 It is argued that Cox forfeited any argument about not having knowledge of specific customers based on how the Fourth Circuit opinion was written.