Concord Music Group, Inc. v. X Corp

             UNITED STATES DISTRICT COURT                            
             MIDDLE DISTRICT OF TENNESSEE                            
                  NASHVILLE DIVISION                                 

CONCORD MUSIC GROUP, INC., et al.,  )                                     
                           )                                         
Plaintiffs,                     )       Case No. 3:23-cv-00606            
                           )       Judge Aleta A. Trauger            
v.                              )                                         
                           )                                         
X CORP., d/b/a TWITTER,         )                                         
                           )                                         
Defendant.                      )                                         

                     MEMORANDUM                                      

X Corp. has filed a Motion to Dismiss (Doc. No. 77), to which the plaintiffs have filed a 
Response (Doc. No. 79), X Corp. has filed a Reply (Doc. No. 82), and the plaintiffs have filed a 
Sur-Reply (Doc. No. 86). For the reasons set out herein, the motion will be granted in part and 
denied in part.                                                           
                    I. BACKGROUND1                                   
The plaintiffs are publishers of musical compositions. (Doc. No. 1 ¶¶ 2, 18–87.) The 
defendant, X Corp., operates the social media platform formerly named, and still frequently 
referred to as, Twitter (“X/Twitter”). (Id. ¶¶ 88–89.) As a social media platform, X/Twitter is a 
venue for posts, often referred to as “tweets,” by its users. Much of the time, those tweets consist 
of the creative work of the users themselves. Other times, however, X/Twitter users post tweets 
that include the copyright-protected work of others without the rights holders’ permission, which 
is, in many instances, copyright infringement. (Id. ¶¶ 3, 103.)           

1 Unless otherwise indicated, these facts are taken from the Complaint (Doc. No. 1) and are accepted as true 
for the purposes of the Motion to Dismiss.                                
This kind of infringement by users of online platforms is a well-established problem, and 
Congress has enacted a framework for addressing it, in the form of the Digital Millenium 
Copyright Act, or “DMCA.” The core feature of the DMCA, for these purposes, is its notice-and-
takedown framework, which creates a streamlined process through which copyright holders may 

seek the removal of protected content, and with which a social media site must, broadly speaking, 
comply in order to avoid liability for its own role in the underlying infringement. See 

17 U.S.C. § 512

(a); Canvasfish.com, LLC v. Pixels.com, LLC, No. 1:23-CV-611, 

2024 WL 885356

, at *10 
(W.D. Mich. Mar. 1, 2024) (describing DMCA safe harbor).                  
The plaintiffs complain that, “[w]hile the Twitter platform began as a destination for short 
text-based messages,” it has since become a “hot destination for multimedia content, with music-
infused videos being of particular and paramount importance.” (Id. ¶ 5.) There are lawful ways for 
a social media company to offer such media—particularly, by entering into licensing agreements 
with rights holders, as TikTok, Facebook, Instagram, YouTube, and Snapchat have done. (Id. ¶ 7.) 
Copyright licenses, though, typically must be paid for, and X/Twitter is, the plaintiffs suggest, 

effectively trying to generate the kind of revenue that one would expect as a lawful purveyor of 
music and other media, without incurring the cost of actually paying for the licenses. (Id.) 
It does not appear to be disputed, in this litigation, that X/Twitter users sometimes engage 
in copyright infringement. What is disputed is the extent to which X Corp. has actively encouraged 
that conduct, if at all. The plaintiffs identify a few ways in which X Corp., they argue, has been 
more than merely a bystander to the infringement on its platform. For example, X/Twitter’s 
interface includes a browsing option, or “tab,” that specifically allows a user to seek out tweets 
including audiovisual media, such as videos, images, and sound recordings. (Id. ¶ 112.) On a 
service where all or most of the audiovisual media available was copyright-compliant, that media-
focused browsing option would be unproblematic, at least from a copyright standpoint. On a 
service filled with infringement, however, it is, the plaintiffs argue, effectively a shortcut allowing 
users to more easily find infringing content. (Id.) The plaintiffs also complain that Twitter’s 
methods of recommending and promoting tweets facilitate and encourage infringement. (Id. ¶¶ 

108–11.)  Although  these  aspects  of  X/Twitter  may  have  some  automated  components,  the 
plaintiffs allege that X/Twitter, as a service, remains subject to real-time monitoring and control 
by X Corp. employees. (Id. ¶ 115.)                                        
As an example of how X/Twitter monetizes infringement, the plaintiffs have identified a 
tweet by a “known repeat infringer who has been the subject of at least nine infringement notices 
to Twitter, identifying at least fourteen infringing tweets.” (Id. ¶ 127.) This allegedly infringing 
tweet includes what appears to be a streaming video that, according to the plaintiffs, includes a 
recorded performance of a copyright-protected musical composition that the X/Twitter user was 
not authorized to share.2 (Id.) For the purposes of X Corp.’s revenue, however, what matters is not 
the tweet, in and of itself, but everything that X/Twitter has been able to surround the tweet with. 

Below it is a “promoted” tweet, which is a tweet that a user has paid X/Twitter to promote. (Id. ¶¶ 
123, 127.) To the right is a button suggesting that a user follow a “promoted” account, which, 
similarly, is an account that a user has paid X/Twitter to promote. (Id. ¶ 127.) That promoted 
account features a blue check mark next to its name, reflecting the fact that the user is “verified,” 
a status that a user can obtain by paying X/Twitter a monthly fee. (Id. ¶¶ 113, 127.) 
The  plaintiffs  are  members  of  a  trade  association,  the  National  Music  Publishers’ 
Association (“NMPA”), that represent their interests. (Id. ¶ 2.) Beginning in December 2021, the 


2 In other words, the user posted a music video.                          
NMPA began sending notices of infringement to X/Twitter on a weekly basis.3 (Id. ¶ 140.) The 
plaintiffs state that those notices have cumulatively identified over 300,000 tweets that included 
infringing material. (Id. ¶ 140.) The plaintiffs do not allege that X/Twitter refuses to acknowledge 
such notices or that it never acts on them. They do allege, however, that it “often waited weeks, a 

month, or even longer before removing or disabling access to the noticed infringement.” (Id. ¶ 
149.) The plaintiffs assert that “[t]he precise extent of Twitter’s lengthy delays will be the subject 
of discovery.” (Id. ¶ 150.)                                               
The plaintiffs also claim that X/Twitter “has not adopted, reasonably implemented, nor 
informed subscribers or account holders of, a policy to terminate users engaging in repeated acts 
of copyright infringement.” (Id. ¶ 154.) According to the plaintiffs, X/Twitter’s publicly available 
copyright  policy  used  to  warn  users  that  their  accounts  could  be  “terminate[d]”  for  repeat 
infringement, but, in August 2018, the company revised the policy to threaten only “suspension.” 
(Id. ¶¶ 156–58.) The plaintiffs allege that X/Twitter uses that suspension power sparingly, 
“suspend[ing] only a small portion of the accounts identified in multiple NMPA [n]otices,” and 

was particularly unlikely to suspend verified accounts with large follower bases, which received 
“preferential treatment” resulting in “virtually none” of those accounts being suspended (Id. ¶¶ 
161–62.)                                                                  
On June 14, 2023, the plaintiffs filed their Complaint in this case. They state three counts—
one each for direct, contributory, and vicarious infringement, respectively. (Id. ¶¶ 190–214.) On 
August 14, 2023, X Corp. filed a Motion to Dismiss. (Doc. No. 77.) The plaintiffs oppose the 
motion in all respects. (Doc. No. 79.)                                    

3 The Complaint does not assert that the NMPA notices of infringement were the first or only such notices 
that X/Twitter received, and the basic structure of the DMCA suggests that X/Twitter has probably received 
takedown notices since its inception. The Complaint, however, focuses on the weekly NMPA notices that 
began in late 2021.                                                       
                  II. LEGAL STANDARD                                 
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court 
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as 

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 

487 F.3d 471, 476

 (6th Cir. 2007); Inge v. Rock Fin. Corp., 

281 F.3d 613

, 619 (6th Cir. 2002). The Federal 
Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the 
claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon 
which it rests.” Conley v. Gibson, 

355 U.S. 41, 47

 (1957). The court must determine only whether 
“the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can 
ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 

534 U.S. 506, 511

 (2002) (quoting 
Scheuer v. Rhodes, 

416 U.S. 232, 236

 (1974)).                             
The complaint’s allegations, however, “must be enough to raise a right to relief above the 
speculative level.” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555

 (2007). To establish the 

“facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal 
conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the 
plaintiff must plead “factual content that allows the court to draw the reasonable inference that the 
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678-79

 (2009). 
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” 

Id. at 679

; Twombly, 

550 U.S. at 556

.                                            
                      III. ANALYSIS                                  
The Copyright Act, broadly speaking, grants the holder of a copyright the exclusive rights 
to reproduce, perform, and distribute the underlying creative work, subject to some exceptions. 
See 

17 U.S.C. § 106

. A person becomes liable for copyright infringement if he violates one of 
those exclusive rights without either permission from the owner or, in the alternative, some legally 
recognized automatic right of use—such as the right to engage in fair use4 or the right to an 
automatic statutory license.5 See 

17 U.S.C. § 501

.                        

“Although ‘the Copyright Act does not expressly render anyone liable for infringement 
committed by another,’” courts have long recognized certain “doctrines of secondary liability” 
drawn from “common law principles” and imputed to the Act. Metro-Goldwyn-Mayer Studios Inc. 
v. Grokster, Ltd., 

545 U.S. 913

, 930–31 (2005) (quoting Sony Corp. of Am. v. Universal City 
Studios,  Inc.,  

464 U.S. 417, 434

  (1984)).  Specifically,  “[o]ne  infringes  contributorily  by 
intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting 
from direct infringement while declining to exercise a right to stop or limit it.” 

Id.

 at 930 (citing 
Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 

443 F.2d 1159, 1162

 (2d Cir. 1971); 
Shapiro, Bernstein & Co. v. H. L. Green Co., 

316 F.2d 304, 307

 (2d Cir. 1963)) (emphasis added). 
The plaintiffs’ Complaint asserts that X/Twitter’s actions give rise to liability under each of these 

three theories—direct, contributory, and vicarious infringement. X Corp. argues, however, that 
none apply. Specifically, X Corp. argues that the plaintiffs have not plausibly alleged that it 
engaged in direct infringement, because none of the underlying infringement involved affirmative 
conduct by X Corp. or its employees. Next, X Corp. argues that the plaintiffs have not plausibly 


4 The fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute 
when, on occasion, it would stifle the very creativity which that law is designed to foster.” Princeton Univ. 
Press v. Mich. Document Servs., Inc., 

99 F.3d 1381, 1385

 (6th Cir. 1996) (quoting Campbell v. Acuff–Rose 
Music, Inc., 

510 U.S. 569

, 577 500 (1994)) (alteration in original).      

5 For example, Congress has created “statutory licenses [that] enable digital audio services to perform 
copyrighted  sound  recordings  by  paying  predetermined  royalty  fees,  without  separately  securing  a 
copyright holder’s permission.” SoundExchange, Inc. v. Copyright Royalty Bd., 

904 F.3d 41, 46

 (D.C. Cir. 
2018).                                                                    
alleged that it engaged in contributory infringement, because they have not sufficiently alleged 
that X Corp. induced or intended to foster the alleged infringement by its users. Finally, X Corp. 
argues that the plaintiffs have not plausibly alleged that it engaged in vicarious infringement, 
because the plaintiffs have not sufficiently alleged either (1) a direct financial benefit to X Corp. 

from the underlying infringement or (2) that X Corp. had the practical ability to supervise the 
alleged infringement. (Doc. No. 77 at 1.)                                 
A. Direct Infringement                                                    
Generally speaking, “[a] claim of copyright infringement requires proof of ‘(1) ownership 
of a valid copyright, and (2) copying of constituent elements of the work that are original.’” ATC 
Distribution Grp., Inc. v. Whatever It Takes Transmissions & Parts, Inc., 

402 F.3d 700

, 705 (6th 
Cir. 2005) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 

499 U.S. 340, 361

 (1991)). As forms 
of media have proliferated, however, there has been a need to flesh out the concept of what forms 
of use constitute unauthorized copying of various different types of copyright-protected material. 
The plaintiffs base their claims on the type of use described in 

17 U.S.C. § 106

(4), which grants 

the holder of rights in a “literary, musical, dramatic, [or] choreographic work[]” the exclusive right 
“to perform the copyrighted work publicly.” 

Id.

 While what X/Twitter does may not appear, on its 
face, to seem much like “performance,” the plaintiffs rely on the Copyright Act’s so-called 
“Transmit Clause,” which defines “public performance” to include “transmit[ting] or otherwise 
communicat[ing] a performance or display of the work to . . . the public, by means of any device 
or process.” 

17 U.S.C. § 101

.                                             
X Corp. does not dispute that the plaintiffs have sufficiently alleged valid ownership of 
copyrights. Nor does X Corp. appear to dispute that recorded performances of the plaintiffs’ works 
were  “transmitted.”  X  Corp.  argues,  however,  that  the  plaintiffs  have  confused  the  act  of 
transmitting a work, which can give rise to direct liability, with simply operating the means through 
which transmission occurred, which would be better considered under the paradigm of secondary 
liability.                                                                
The  Supreme  Court  addressed  a  somewhat  similar  issue  in  American  Broadcasting 

Companies, Inc. v. Aereo, Inc., 

573 U.S. 431

 (2014), which involved claims brought by television 
broadcasters against the operator of a “technologically complex service that [allowed users] to 
watch television programs over the Internet at about the same time as the programs [were] 
broadcast over the air.” 

Id. at 436

. The defendant in that case used “thousands of dime-sized 
antennas housed in a central warehouse” to receive broadcast television signals, the contents of 
which were then transmitted to subscribers electronically—in effect, allowing a subscriber to 
stream broadcast television through a mechanism that the broadcaster did not anticipate or 
authorize. 

Id.

 The question presented to the Supreme Court was whether that practice amounted to 
“perform[ing] the copyrighted work publicly,” as that term is used in 

17 U.S.C. § 106

(4) and the 
Transmit Clause. The court concluded that it did. Aereo, 573 U.S. at 436. 

The service at issue in Aereo—that is, “Aereo”—was like X/Twitter in that it provided a 
mechanism through which copyright-protected works were made available to users for private 
consumption, in a manner not authorized by the owner of the rights to the work. X/Twitter, 
however, differs from Aereo in some key ways. For one thing, Aereo involved a system designed 
for the sole purpose of transmitting the subject content and which had no plausible utility, in that 
configuration, other than the transmission of that content, whereas X/Twitter is a social media site 
with a range of potential uses. More importantly, for the purposes of the Transmit Clause analysis, 
Aereo involved the removal of copyright-protected works from their usual channels of distribution 
by the defendant, even if that diversion was only completed when directed by an end user. Aereo 
effectively  inserted  itself  as  an  unauthorized  intermediary  directly  between  authorized 
broadcasters and unauthorized viewers. It structured its service to try to support an argument that 
it was the end users, not Aereo, who were responsible for the underlying acts,6 but there was no 
plausible basis for arguing that anyone other than Aereo or the end user was responsible for any 

alleged  infringement.  In  other  words,  if  anyone  other  than  the  end  consumer  engaged  in 
unauthorized “transmission,” it had to be Aereo. Here, in contrast, the infringement was, in each 
cited instance, initiated by a third party other than either X Corp. or the ultimate consumer of the 
infringing material. X Corp. argues that the X/Twitter users who selected the copyright-protected 
material, obtained it, composed the underlying tweets, and chose to post those tweets were the 
ones doing the transmitting, as that term is used in the Copyright Act, not X Corp. 
In Aereo, the Supreme Court acknowledged that “transmission” is an ambiguous concept, 
and this court agrees. Generally speaking, “transmit” means “[t]o send or transfer (a thing) from 
one person or place to another” or “[t]o communicate.” TRANSMIT, Black’s Law Dictionary 
(11th ed. 2019). Applying that term may be relatively straightforward, when one is considering a 

purely bilateral transmission by a sender to a recipient. Matters become more complicated, 
however, when a transmission involves intermediaries. For example, one individual who sends 
information to another individual by telegraph “transmits” that information. It is, however, 
consistent with some uses of “transmit” to say that the telegraph system itself “transmitted” the 
information as well. What, then, about the owners of the telegraph lines or the telegraph machines? 
Whether these intermediary individuals engaged in “transmission” cannot be resolved simply by 
looking to the ordinary meaning of the word.                              

6 Specifically, Aereo (1) never allowed more than one user to receive the signal from a particular antenna 
and (2) did not transmit continuously, but rather waited until the viewer turned the service on, each of which 
action supported a colorable—but ultimately rejected—argument that Aereo service was distinguishable 
from conventional cable providers. Aereo, 573 U.S. at 436, 444.           
In Aereo, the Supreme Court resolved the ambiguity  inherent in Congress’s chosen 
terminology by looking to the context of the 1976 adoption of the Transmit Clause, which, it turns 
out, was not enacted with simply some abstract, inchoate notion of “transmission” in mind. Rather, 
that amendment, the Court explained, was specifically intended to protect “community antenna 

television (CATV) systems,” whose broadcasts, prior to the amendment, were being received, 
transmitted, and monetized by cable providers in a practice that the Supreme Court had specifically 
found to be non-infringing. Id. at 439 (discussing Fortnightly Corp. v. United Artists Television, 
Inc., 

392 U.S. 390, 391

 (1968)). The practice at issue in Aereo, then, was virtually identical, in its 
purpose and intent, to a practice already considered and prohibited by Congress through the 
Transmit Clause, with the exceptions that the Aereo service (1) involved the internet and (2) 
involved some unique features that appear to have been implemented as a form of regulatory 
arbitrage—that is, for no purpose other than to try to evade the Copyright Act. Accordingly, Aereo 
was, in a sense, an easy case. Congress specifically outlawed something, and the defendant was 
doing more or less that precise thing, with a few superficial tweaks.     

The plaintiffs argue that their theory of direct infringement falls squarely within Aereo, but 
it is hard to see how that could be the case. These plaintiffs’ allegations, in contrast with the 
bilateral transmission relationship at issue in Aereo, require the court to consider the respective 
roles of three parties: one who sent protected material, one who received it, and a third party, X 
Corp., that continuously operated the platform through which that infringement—and numerous 
other, non-infringing communications—occurred. X/Twitter, unlike Aereo, did not “transmit” any 
of the allegedly infringing material in the manner of a cable provider, because it was not the party 
that initially diverted that material from the intended channels of distribution. X/Twitter was more 
like a telephone company—providing the mechanism for communication between independent 
communicators—than like a cable company that actively selects material to make available. The 
purpose of the Transmit Clause, the Supreme Court acknowledged, was to “erase[] the . . . line 
between broadcaster and viewer,” but X/Twitter was neither of those things. 

Id. at 441

. It was a 
carrier.                                                                  

The Aereo majority, moreover, specifically acknowledged that “Congress, while intending 
the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to 
discourage or to control the emergence or use of different kinds of technologies.” 

Id. at 449

. The 
Court stressed that it did not intend its “limited holding” to “have that effect.” 

Id.

 That unintended 
effect, however, is exactly what the plaintiffs would have this court endorse. There is no plausible 
case that X/Twitter is the “equivalent” of a cable company in the manner that Aereo—which had 
no meaningful existence other than as a copyright workaround for television broadcasts—was. The 
Aereo majority explained that it was not trying to “answer more precisely how the Transmit Clause 
or other provisions of the Copyright Act will apply to technologies not before” it, and that is how 
the court will construe its holding. 

Id. at 451

.                          

The  broader  body  of  copyright  caselaw,  moreover,  confirms  the  importance  of  the 
distinction between active participants in infringement and parties that merely provide the means 
through which infringement is accomplished. Although the precise boundaries of infringement are, 
in some cases, unclear, numerous courts have acknowledged that direct infringement typically 
“requires conduct by a person who causes in some meaningful way an infringement.” CoStar Grp., 
Inc. v. LoopNet, Inc., 

373 F.3d 544

, 549 (4th Cir. 2004) (emphasis in original). That approach does 
not mean that a passive participant in infringement will necessarily be free from liability, because 
theories of contributory and/or vicarious infringement might still be available. If, however, a 
plaintiff wishes to pursue a claim of infringement without establishing the “additional elements[,] 
such as knowledge,” that secondary liability often demands, then the plaintiff must establish that 
the defendant actually did something that could, itself, be considered infringement. Id.; see also 
Perfect 10, Inc. v. Giganews, Inc., 

847 F.3d 657, 666

 (9th Cir. 2017) (“[D]irect infringement 
requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the defendant.”) 

(citation omitted); BWP Media USA, Inc. v. T & S Software Assocs., Inc., 

852 F.3d 436, 440

 (5th 
Cir. 2017) (“[E]very circuit to address this issue has adopted some version of Netcom’s reasoning 
and the volitional-conduct requirement.”) (citations omitted); Stokes v. Brinor, Inc., No. 1:22-CV-
973, 

2023 WL 4593776

, at *6 (N.D. Ohio July 18, 2023) (“Liability for direct infringement . . . 
requires ‘volitional conduct’ by the alleged infringer.”).                
The plaintiffs point out that the Sixth Circuit, unlike many other courts, has not expressly 
adopted a “volitional conduct” requirement for all direct infringement cases. This court, however, 
is not called on to adopt or reject a holistic test applicable to all claims of direct infringement, only 
to determine whether the plaintiffs have plausibly alleged the particular type of unauthorized use 
on which their claims rely: public performance through transmission. Whether or not there is some 

kind of “volitional conduct” requirement for all claims of direct infringement, the fact that courts 
have widely considered direct infringement to apply chiefly, if not exclusively, to active conduct 
is relevant to the narrower question of whether X Corp.’s alleged actions fall within the Transmit 
Clause.                                                                   
The Supreme Court, faced with that clause’s ambiguity, looked at the particular activity 
that the Transmit Clause was intended to prevent and concluded that the activity at issue in Aereo 
was of the same fundamental character. This court asks the same questions about the conduct 
alleged here, and it reaches the opposite answer: X/Twitter’s activity, whatever its legality, is 
qualitatively distinct from the kind of “transmission” at issue in the Transmit Clause and is much 
better-suited to the tools of secondary liability. See Tom Hussey Photography, LLC v. BDG Media, 
Inc., No. CV 20-404-MN, 

2020 WL 7481770

, at *2 n.1 (D. Del. Dec. 18, 2020) (stating that there 
is “a long line of copyright cases against internet service providers, in which courts have routinely 
held that passively hosting infringing works . . . does not rise to the level of . . . direct copyright 

infringement”).                                                           
As the Supreme Court explained in Aereo, the Transmit Clause was adopted with the 
specific purpose of ensuring that both the “broadcaster” and the “viewer” of an audiovisual work 
could, where appropriate, be held liable for direct infringement of the type involved in the 
transmission of broadcast television through cable systems. Aereo, 573 U.S. at 441. That purpose 
is consistent with the conclusion that “transmission” refers to the actions of the sender and/or 
ultimate recipient of a copyright-protected work—not those of the operators of the channels 
through which that transmission was accomplished. Claims against such a third party continue to 
be appropriate for consideration in connection with theories of secondary liability, not direct 
infringement. The court, accordingly, will dismiss Count I.               

B. Contributory Infringement                                              
The  Supreme  Court  most  recently  addressed  the  issue  of  contributory  copyright 
infringement in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 

545 U.S. 913, 914

 (2005), 
which involved the potential liability of the developers of software that enabled widespread peer-
to-peer filesharing. The court concluded that “one who distributes a device”—including a piece of 
software—“with the object of promoting its use to infringe copyright, as shown by clear expression 
or  other  affirmative  steps  taken  to  foster  infringement,  is  liable  for  the  resulting  acts  of 
infringement by third parties.” 

Id. at 919

. That description does not capture exactly what is alleged 
in this case, because, among other things, the plaintiffs allege that X/Twitter is a product that 
became increasingly more infringement-friendly over time, not one that was distributed, in the first 
instance, to enable piracy. The fact that X Corp.’s actions differ somewhat from those captured by 
the particular theory of liability that prevailed in Grokster is not, however, necessarily grounds for 
dismissal of Count II. As this court has previously held, Grokster was not intended to be a 

comprehensive statement of the boundaries of contributory infringement under the Copyright Act, 
but rather a response to the specific pattern of behavior before the Court. See Eight Mile Style, LLC 
v. Spotify USA Inc., 

535 F. Supp. 3d 738

, 746 (M.D. Tenn. 2021).          
The Sixth Circuit has recognized liability for contributory infringement where a party 
knowingly “induces, causes, or materially contributes to the infringing conduct of another.” 
Bridgeport Music, Inc. v. WM Music Corp., 

508 F.3d 394, 398

 (6th Cir. 2007) (quoting Bridgeport 
Music, Inc. v. Rhyme Syndicate Music, 

376 F.3d 615, 621

 (6th Cir. 2004)). Courts in this circuit—
including the Sixth Circuit itself—have cited that test since Grokster. See, e.g., NCR Corp. v. 
Korala Assocs., Ltd., 

512 F.3d 807, 816

 (6th Cir. 2008); Bell v. Worthington City Sch. Dist., No. 
2:18-CV-961, 

2020 WL 2905803

, at *11 (S.D. Ohio June 2, 2020). Courts in other circuits have 

agreed that similar principles of secondary liability can be applied under the Copyright Act, 
including post-Grokster. See, e.g., Dream Games of Arizona, Inc. v. PC Onsite, 

561 F.3d 983, 995

 
(9th Cir. 2009); Oppenheimer v. Scarafile, No. 2:19-CV-3590-BHH, 

2020 WL 6710864

, at *5 
(D.S.C. Nov. 16, 2020). This court, accordingly, will continue to apply the Sixth Circuit’s ordinary 
test, with the understanding that it must be construed consistently with Grokster. 
The Complaint alleges that X Corp. caused or materially contributed to infringement on 
the X/Twitter platform in the following ways:                             
Twitter facilitates, encourages, and materially contributes to . . . infringement, 
including  by  continuing  to  host  and  transmit  known  infringing  content  and 
continuing  to  provide  its  services  and  facilities  to  users  known  to  be  repeat 
infringers engaged in infringement. Twitter has the means to take simple steps not 
to materially contribute to the specific infringing activity but fails to do so. Instead, 
Twitter continues to provide the site and facilities necessary for these users of its 
platform  to  commit  direct  infringement,  and  actively  facilitates  the  ongoing 
infringement, including via the actions described above.             

(Doc. No. 1 ¶ 199.) The plaintiffs, however, have not identified any caselaw or statutory law 
suggesting  that  merely  hosting  infringing  content,  until  it  is  subject  to  a  takedown  notice, 
constitutes “materially contributing” to infringement under current law. Nor do the plaintiffs 
identify any authority that would support an argument that the operator of a social media platform 
materially contributes to infringement simply because there are some preventive steps that the 
operator could have taken but did not.                                    
Insofar as the plaintiffs are seeking to pursue a broad theory that X Corp. is liable for all of 
the infringement done on its platform because it has, in effect, created a straightforward, intentional 
infringement facilitation device, like the peer-to-peer filesharing applications that led to Grokster 
and similar litigation, the plaintiffs have failed to allege that theory in a manner consistent with 
either Grokster or the general law of secondary liability. Many of the supposedly problematic 
practices that the plaintiffs identify are unremarkable features of X/Twitter generally that X Corp. 
has simply failed to fence off completely from infringers. For example, while the plaintiffs make 
much  of  X/Twitter’s  monetization  of  infringing  tweets  by  surrounding  them  with  paid-for 
promoted material, there is no allegation that those practices were meaningfully different than 
those X/Twitter applied to monetize popular, but entirely non-infringing, tweets. The plaintiffs 
complain that it is too easy to upload infringing audiovisual files onto X/Twitter, but, again, the 
plaintiffs are simply discussing a general feature of the platform. They do not allege that it is easier 
to post an infringing file than a non-infringing one. Any feature that makes a service easier for all 
of its users will, by definition, also make the service easier for bad actors. The plaintiffs have not 
identified any basis for concluding that X Corp. was obligated to make its service worse for 
everyone, just to punish the people who misuse it.                        
The plaintiffs’ discrete allegations regarding some specific practices, however, much more 
plausibly fall into the category of materially contributing to infringement. Particularly striking is 

the allegation that X Corp. enforces its copyright policies less stringently against individuals 
willing to pay for its “verified” service. If X Corp. truly did allow some users to effectively 
purchase the right to be able to infringe with less severe consequences, then that was plausibly an 
instance of “promoting” X/Twitter’s “use to infringe copyright, as shown by . . . affirmative steps 
taken to foster infringement,” which Grokster acknowledged as a sufficient basis for liability. 
Grokster, 545 U.S. at 936–37.                                             
Similarly, if X Corp. engaged in egregious delays in responding to valid takedown notices, 
or outright ignored some notices that were both facially and actually valid, that could support 
liability. The plaintiffs have not identified any basis for concluding that X Corp. had an obligation 
to respond to notices of infringement either blindly or instantaneously. In fact, a company that 

instantly complied with every takedown notice filed, without scrutinizing it at all, would run the 
risk of enabling abusive, anticompetitive takedown practices—a danger that the DMCA itself 
acknowledges. See 

17 U.S.C. § 512

(f) (creating liability for some abusive takedown practices). 
The fact that some delay may be appropriate, however, is not an unlimited license to drag one’s 
feet inordinately or forever. If, in fact, X Corp. allowed delays to extend beyond what was 
reasonably necessary to process takedown requests, in order to make the platform a more attractive 
tool to infringers, that improper extension of delays would plausibly amount to “purposeful, 
culpable . . . conduct” intended to enable infringement, capable of supporting secondary liability. 
Grokster, 

545 U.S. at 937

.                                                
Finally,  the  plaintiffs  have  plausibly  alleged  that  X  Corp.  engaged  in  contributory 
infringement by failing to take meaningful steps to address the actions of severe serial infringers. 
Nothing in the Complaint is sufficient to plausibly suggest that a social media platform like 
X/Twitter has an obligation to suspend or terminate the account of every person who infringes 

more than once, or even every user who infringes a number of times. Like delays, however, 
recidivism can exist in degrees. The plaintiffs have alleged that there was an identifiable subset of 
X/Twitter users who openly and obviously used the service as a tool for repeatedly posting 
infringing content, but X Corp. affirmatively declined to take reasonable steps in response to those 
users’ actions. Again, there is no basis in the law for concluding that the operator of a social media 
platform will face liability simply because it was less draconian in its enforcement than copyright 
holders would prefer. If, however, there was a class of X/Twitter users who were brazenly using 
the platform as an infringement tool, and X Corp. made the decision to unreasonably withhold 
enforcement of its own policies against those users, with the foreseeable consequence of ongoing 
infringement, then X Corp. could plausibly be held contributorily liable. See BMG Rts. Mgmt. (US) 

LLC v. Cox Commc’ns, Inc., 

881 F.3d 293, 308

 (4th Cir. 2018) (recognizing potential for liability 
for contributory infringement based on continuing to serve “specific customers” known to be 
infringers).                                                              
The court, accordingly, will dismiss Count II, insofar as it seeks to assert a theory of 
comprehensive general liability for infringement across the X/Twitter platform, but the court will 
permit the plaintiffs to proceed with regard to the three potentially unlawful practices that the court 
has discussed and any instances of infringement attributable to those practices. Specifically, the 
court will not dismiss Count II as to allegations that X/Twitter (1) allowed users to pay for more 
forgiving treatment under its anti-infringement policies through its “verified user” program, (2) 
was unreasonably dilatory in its response to notices of infringement, and (3) failed to take 
appropriate steps regarding the accounts of severe repeat infringers.     
C. Vicarious Infringement                                                 
Generally speaking, a party “infringes vicariously by profiting from direct infringement 

while declining to exercise the right to stop or limit it.” Grokster, 

545 U.S. at 914

. Applying that 
definition becomes difficult, however, when the defendant is not a party with a conventional 
relationship of formal control over the infringer—such as an employer or corporate parent—but 
rather simply the provider of a product or service that is often used in infringement. For example, 
a company that sells internet-capable personal computers will know, as a matter of basic common 
sense, that some (likely considerable) portion of its customers will use their computers for 
copyright infringement. The seller would, moreover, have the power to stop that particular 
infringement—by not selling its computers to anyone. Technically speaking, then, such a party 
does, in fact, knowingly profit from infringement that it could have stopped. A broad interpretation 
of the “right to stop or limit” infringement, therefore, would support liability.  

The Supreme Court has recognized, however, that the Copyright Act does not require the 
seller of a useful, lawful product to scrap its entire business just to spite infringers. The Court faced 
that very dilemma in connection with the rise of videocassette recorders—that is, VCRs—in 1994, 
and it held that vicarious liability does not arise merely because a company “sold [a product] with 
constructive  knowledge  of  the  fact  that  [its]  customers  may  use  that  [product]  to  make 
unauthorized copies of copyrighted material.” Sony Corp. of Am. v. Universal City Studios, Inc., 

464 U.S. at 439

. When the caselaw involving vicarious infringement discusses a defendant’s “right 
to stop or limit” infringement, then, it means something more than simply the right to refuse to 
distribute one’s product to possible infringers.                          
The fact that one type of control is not sufficient to establish liability, however, does not 
resolve the issue of what level of control would be adequate. To answer that question, the court 
must look to well-established general principles of vicarious liability, with the understanding that 
vicarious infringement is not some unique, sui generis concept, but rather an application of the 

same principles of “vicarious liability . . . imposed in virtually all areas of the law.” 

Id. at 435

. 
Most relationships that have been found to give rise to vicarious liability, however, do not resemble 
X Corp.’s relationship to X/Twitter users. Rather, vicarious liability most often arises in a situation 
involving an actual right of control, such as when a principal, employer, or controlling business 
owner is held liable for the actions of his agent, employee, or controlled business. See Restatement 
(Third) of Torts: Apportionment Liab. § 13 (2000). Vicarious liability is not strictly limited to 
those contexts, but, where “the defendant lacked the formal, contractual ability to control the direct 
infringer,”  courts  typically  require  something  comparably  significant,  such  as  “pervasive 
participation” in the underlying activity. Fonovisa, Inc. v. Cherry Auction, Inc., 

76 F.3d 259, 263

 
(9th Cir. 1996).                                                          

The  plaintiffs  have  not  alleged  that  X  Corp.  had  a  classic  employer/employee  or 
principal/agent relationship with X/Twitter’s infringing users, but they allege that X Corp. is 
nevertheless liable vicariously because it “had the legal right and practical ability to supervise and 
control the infringing activities.” (Doc. No. 1 ¶ 208.) The plaintiffs’ argument, however, stretches 
the definitions of “supervise” and “control” beyond their breaking points. The plaintiffs do not 
allege that X Corp. had the power to oversee users’ actual drafting of the relevant tweets. Nor do 
they allege that X Corp. had the power to oversee users’ efforts, if any, to obtain authorization 
from copyright holders before tweeting. See Tur v. YouTube, Inc., No. CV064436 FMC AJWX, 

2007 WL 1893635

, at *3 (C.D. Cal. June 20, 2007) (suggesting that the “right and ability to 
control” standard “presupposes some antecedent ability to limit or filter copyrighted material”). 
The plaintiffs also do not allege that X/Twitter had editorial control over the content of tweets, 
other than making the yes-or-no decision of whether or not to remove a tweet after it was posted 
and brought to X Corp.’s attention. Cf. Masck v. Sports Illustrated, No. 13-10226, 

2013 WL 2626853

, at *7 (E.D. Mich. June 11, 2013) (agreeing with argument that large e-commerce 
platform “cannot be expected to examine every product posted by a third-party and determine 
whether or not it is infringing”). That narrow authority falls far short of the level of control 
typically required for vicarious liability to arise. See, e.g., Creech v. Addington, 

281 S.W.3d 363

, 
373–74 (Tenn. 2009) (discussing requirements of vicarious liability in Tennessee). 
X Corp. undoubtedly had some power over X/Twitter’s users—the way that a company 
that provides a valued service always has power over the customers who rely on it—but that does 
not turn customers into even loose equivalents of agents or subordinates. See Music Force, LLC v. 
Sony Music Holdings Inc., No. CV 19-6430 FMO (RAOx), 

2020 WL 5733258

, at *3 (C.D. Cal. 
Aug. 12, 2020) (“[T]he right to terminate services or a contract with an infringer does not amount 

‘to a right and ability to supervise the infringing conduct.’”) (quoting Routt v. Amazon.com, Inc., 

584 F. App’x 713, 715

 (9th Cir. 2014)). As with the issue of direct infringement, the plaintiffs are 
trying to force X Corp’s actions into a category not intended to account for the actual character of 
the relationships at issue, when there is a tool—the doctrine of contributory infringement—
uniquely suited to the job.7                                              
The court stresses, however, that its rejection of vicarious infringement as the appropriate 
framework for considering the plaintiffs’ claims does not mean that the plaintiffs are barred from 


7 Because the court finds that X Corp. had insufficient control over its users to support vicarious liability, 
there is no need to resolve the question of whether the economic benefits it allegedly reaped from tolerating 
infringement were sufficiently direct to support such a theory.           
relying on the evidence that they would offer in support of such a theory, as a means of supporting 
a claim for contributory infringement under Count II. As the Supreme Court has acknowledged, 
“the lines between direct infringement, contributory infringement, and vicarious liability are not 
clearly drawn.” Sony Corp., 

464 U.S. at 435

 n.17 (quoting Universal City Studios, Inc. v. Sony 
Corp. of Am., 

480 F. Supp. 429, 458

 (C.D. Cal. 1979)). The ultimate questions presented by this 
case are whether and to what extent X Corp. may be liable for the infringing acts of users on its 
platform. X Corp.’s powers of monitoring and control over users and their tweets are relevant to 
that inquiry, as are X Corp.’s economic incentives to tolerate infringement—whether or not one 
resorts to the concept of vicarious, rather than contributory, infringement. The court’s decision to 
permit Count II to proceed with regard to certain challenged policies means that those issues are 
still part of the case. Insofar as Count III purports to assert a distinct theory of liability, however, 
it fails and will be dismissed. 
                         IV. CONCLUSION 
 For the foregoing reasons, X Corp.’s Motion to Dismiss (Doc. No. 77) will be granted in 
part and denied in part. Counts I and III will be dismissed, and Count II will be dismissed, except 
with regard to  the  following practices:  (1) providing  more  lenient  copyright  enforcement to 
“verified” users; (2) failing to act on takedown notices in a timely manner; and (3) failing to take 
reasonable steps in response to severe serial infringers. 
 An appropriate order will enter. 
                                          hill    ag  — 
                                           United States District Judge 

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