Reynaldo Gonzalez, et al., PETITIONERS v. Google LLC

On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

[May 18, 2023]

In 2015, ISIS terrorists unleashed a set of coordinated attacks across Paris, France, killing 130 victims, including Nohemi Gonzalez, a 23-year-old U. S. citizen.1 Gonzalez’s parents and brothers then sued Google, LLC, under 18 U. S. C. §§2333(a) and (d)(2), alleging that Google was both directly and secondarily liable for the terrorist attack that killed Gonzalez.2 For their secondary-liability claims, plaintiffs alleged that Google aided and abetted and conspired with ISIS. All of their claims broadly center on the use of YouTube, which Google owns and operates, by ISIS and ISIS supporters.

 The District Court dismissed plaintiffs’ complaint for failure to state a claim, though it offered plaintiffs leave to amend their complaint. Instead, plaintiffs stood on their complaint and appealed, and the Ninth Circuit affirmed in a consolidated opinion that also addressed Twitter, Inc. v. Taamneh, ___ U. S. ___ (2023). 2 F. 4th 871 (2021). With respect to this case, the Ninth Circuit held that most of the plaintiffs’ claims were barred by §230 of the Communications Decency Act of 1996, 110 Stat. 137, 47 U. S. C. §230(c)(1). The sole exceptions were plaintiffs’ direct- and secondary-liability claims based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue-sharing system. The Ninth Circuit held that these potential claims were not barred by §230, but that plaintiffs’ allegations failed to state a viable claim in any event.

 We granted certiorari to review the Ninth Circuit’s application of §230. See 598 U. S. ___ (2022). Plaintiffs did not seek review of the Ninth Circuit’s holdings regarding their revenue-sharing claims. In light of those unchallenged holdings and our disposition of Twitter, on which we also granted certiorari and in which we today reverse the Ninth Circuit’s judgment, it has become clear that plaintiffs’ complaint—independent of §230—states little if any claim for relief. As plaintiffs concede, the allegations underlying their secondary-liability claims are materially identical to those at issue in Twitter. See Tr. of Oral Arg. 58. Since we hold that the complaint in that case fails to state a claim for aiding and abetting under §2333(d)(2), it appears to follow that the complaint here likewise fails to state such a claim. And, in discussing plaintiffs’ revenue-sharing claims, the Ninth Circuit held that plaintiffs plausibly alleged neither that “Google reached an agreement with ISIS,” as required for conspiracy liability, nor that Google’s acts were “intended to intimidate or coerce a civilian population, or to influence or affect a government,” as required for a direct-liability claim under §2333(a). 2 F. 4th, at 901, 907. Perhaps for that reason, at oral argument, plaintiffs only suggested that they should receive leave to amend their complaint if we were to reverse and remand in Twitter. Tr. of Oral Arg. 58, 163.

 We need not resolve either the viability of plaintiffs’ claims as a whole or whether plaintiffs should receive further leave to amend. Rather, we think it sufficient to acknowledge that much (if not all) of plaintiffs’ complaint seems to fail under either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below. We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.

It is so ordered.

Notes
1 “ISIS” is shorthand for the Islamic State of Iraq and Syria. In some form or another, it has been designated a Foreign Terrorist Organization since 2004; ISIS has also been known as the Islamic State of Iraq and the Levant, al Qaeda in Iraq, and the al-Zarqawi Network.

2 Title 18 U. S. C. §2333(a) provides: “Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.” Section 2333(d)(2) provides: “In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U. S. C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”


POLSELLI et al. v. INTERNAL REVENUE SERVICE

Certiorari To The United States Court Of Appeals For The Sixth Circuit

No. 21–1599. Argued March 29, 2023—Decided May 18, 2023

The Internal Revenue Service has the power to issue summonses to pursue unpaid federal taxes and the people who owe them. When the IRS issues a summons, it must generally provide notice to any person identified in the summons, §7609(a)(1). Anyone entitled to such notice may then bring a motion to quash the summons, §7609(b)(2)(A). But when the IRS issues a summons “in aid of the collection of . . . an assessment made . . . against the person with respect to whose liability the summons is issued,” no notice is required, §7609(c)(2)(D)(i).

  In this case, the IRS entered official assessments against Remo Polselli for more than $2 million in unpaid taxes and penalties. Revenue Officer Michael Bryant issued summonses to three banks seeking financial records of several third parties, including petitioners, who then moved to quash the summonses. The District Court concluded that, under §7609(c)(2)(D)(i), no notice was required and that petitioners therefore could not bring a motion to quash. The Sixth Circuit affirmed, finding that the summonses fell squarely within the exception in §7609(c)(2)(D)(i) to the general notice requirement.

Held: The Court rejects petitioners’ argument that the exception to the notice requirement in §7609(c)(2)(D)(i) applies only if the delinquent taxpayer has a legal interest in the accounts or records summoned by the IRS. Pp. 5–12.

 (a) The statute sets forth three conditions to exempt the IRS from providing notice in circumstances like these. First, a summons must be “issued in aid of . . . collection,” §7609(c)(2)(D). Second, it must aid the collection of “an assessment made or judgment rendered,” §7609(c)(2)(D)(i). Third, a summons must aid the collection of assessments or judgments “against the person with respect to whose liability the summons is issued,” §7609(c)(2)(D)(i). The statute does not mention legal interest, much less require that a taxpayer maintain such an interest for the exception to apply. Pp. 5–7.

 (b) Petitioners’ arguments in support of their proposed legal interest test do not convince the Court to abandon an ordinary reading of the notice exception. Petitioners first contend the phrase “in aid of the collection” refers only to inquiries that “directly advance” the IRS’s collection efforts, which a summons will not accomplish unless it is targeted at an account containing assets that the IRS can collect to satisfy the taxpayer’s liability. This argument ignores the typical meaning of “in aid of.” To “aid” means “[t]o help” or “assist.” A summons that may not itself reveal taxpayer assets that can be collected may nonetheless help the IRS find such assets.

 Petitioners next argue that if §7609(c)(2)(D)(i) is read to exempt from notice every summons that helps the IRS collect an “assessment” against a delinquent taxpayer, there would be no work left for the second exception to notice, found in §7609(c)(2)(D)(ii), to do. Clause (ii) exempts from notice any summons “issued in aid of the collection of . . . the liability at law or in equity of any transferee or fiduciary of any person referred to in clause (i).” The two clauses apply in different circumstances: clause (i) applies upon an assessment, while clause (ii) applies upon a finding of liability. In addition, clause (i) concerns delinquent taxpayers, while clause (ii) concerns transferees or fiduciaries. As a result, clause (ii) permits the IRS to issue unnoticed summonses to aid its collection from transferees or fiduciaries before it makes an official assessment of liability. Pp. 7–11.

 (c) The Court does not dismiss any apprehension about the scope of the IRS’s power to issue summonses and does not define the precise contours of the phrase “in aid of the collection.” The briefing by the parties and the question presented focus only on whether §7609(c)(2)(D)(i) requires that a taxpayer maintain a legal interest in records summoned by the IRS. The answer is no.

23 F. 4th 616, affirmed.  Roberts, C. J., delivered the opinion for a unanimous Court. Jackson, J., filed a concurring opinion, in which Gorsuch, J., joined.


OHIO ADJUTANT GENERAL’S DEPARTMENT et al. v. FEDERAL LABOR RELATIONS AUTHORITY et al.

Certiorari To The United States Court Of Appeals For The Sixth Circuit

No. 21–1454. Argued January 9, 2023—Decided May 18, 2023

The Federal Service Labor-Management Relations Statute (FSLMRS) provides for collective bargaining between federal agencies and their employees’ unions; bars each from committing unfair labor practices; and establishes the Federal Labor Relations Authority (FLRA) to investigate and adjudicate labor disputes. See 5 U. S. C. §7101 et seq. At issue here, the American Federation of Government Employees, Local 3970, AFL–CIO is the exclusive representative of certain federal civil-service employees known as dual-status technicians who work for the Ohio National Guard. After their prior collective-bargaining agreement (CBA) expired, petitioners here—the Ohio National Guard, the Ohio Adjutant General, and the Ohio Adjutant General’s Department (collectively the Guard)—asserted that the Guard was not bound by the FSLMRS when interacting with the Guard’s dual-status technicians. The Union subsequently filed an unfair labor practice complaint with the FLRA to resolve the dispute. Pointing to the fact that the FLRA only has jurisdiction over labor organizations and federal agencies, petitioners argued that the Guard was not an “agency” and that dual-status technician bargaining-unit employees were not “employees” for purposes of the FSLMRS. The Administrative Law Judge issued a recommended decision finding that: the FLRA had jurisdiction over the Guard; the dual-status technicians had collective-bargaining rights under the FSLMRS; and the Guard’s actions in repudiating the CBA violated the FSLMRS. A divided panel of the FLRA adopted the ALJ’s findings, conclusions, and remedial order. Petitioners sought review in the Sixth Circuit, which denied relief.

Held: The FLRA had jurisdiction over this labor dispute because a State National Guard acts as a federal agency for purposes of the FSLMRS when it hires and supervises dual-status technicians serving in their civilian role.

 The question whether petitioners are an “agency” for purposes of the FSLMRS when they act as supervisors of dual-status technicians is bounded by a series of defined statutory terms. 5 U. S. C. §7116(a)(1). The FSLMRS defines “agency” to include the Department of Defense. §7103(a)(3). And each dual-status “technician . . . is an employee of the Department of the Army or the Department of the Air Force,” 32 U. S. C. §709(e); see also 10 U. S. C. §10216(a)(1)(A). Those Departments, in turn, are components of the Department of Defense. §§111(b)(6) and (8). Components of covered agencies plainly fall within the reach of the FSLMRS. See 5 U. S. C. §§7103(a)(12), 7112(a). Thus, when petitioners employ dual-status technicians, they—like components of an agency—exercise the authority of the Department of Defense, a covered agency.

 The statutory authority permitting the Ohio Adjutant General to employ dual-status technicians as civilian employees in the federal civil service reinforces this point. See 5 U. S. C. §2105(a)(1)(F). Congress has required the Secretaries of the Army and Air Force to “designate” adjutants general “to employ and administer” technicians. 32 U. S. C. §709(d). That designation is the sole basis for petitioners’ authority to employ technicians performing work in their federal civilian roles. Here, a 1968 order of the Secretary of the Army “designate[s]” and “empower[s]” each adjutant general “to employ and administer the Army National Guard technicians authorized for his State . . . as the case may be.” General Order No. 85, ¶3. Accordingly, dual-status technicians are ultimately employees of the Secretaries of the Army and the Air Force, and petitioners are the Secretaries’ designees for purposes of dual-status technician employment. Should a state adjutant general wish to employ federal dual-status technicians, the adjutant general must do so pursuant to delegated federal authority and subject to federal civil-service requirements. See 5 U. S. C. §2105(a)(1)(F).

 The evolution of federal agency-employee relations law and the text of §7135(b) lend further support to the FLRA’s exercise of authority over the Guard. Section 7135(b) explicitly continues prior practice under the provisions of Executive Order No. 11491—the precursor to the FSLMRS—except where specifically revoked by the President or altered by the FSLMRS or corresponding regulations. The 1971 decision in Thompson Field is on point. See Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20. There, the Assistant Secretary of Labor—exercising adjudicative authority under Executive Order No. 11491 analogous to the FLRA’s—held that Mississippi’s National Guard technicians were employees of the Federal Government under Executive Order No. 11491. The Assistant Secretary concluded that the State’s adjutant general had “been designated as an agent of the Secretaries of the Army and the Air Force” in employing and administering dual-status technicians and that this agency relationship created the obligation to comply with Executive Order No. 11491. Id., at 7. The definitions of “employee” and “agency” that Thompson Field examined were materially identical to those that Congress ultimately adopted in the FSLMRS. The Court thus ordinarily presumes that the FSLMRS maintained the same coverage that existed under the prior regime, see, e.g., George v. McDonough, 596 U. S. ___, ___, and the Court identifies nothing to weaken that presumption here. Pp. 5–11.

21 F. 4th 401, affirmed.

 Thomas, J. delivered the opinion of the Court, in which Roberts, C. J, and Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. Alito, J., filed a dissenting opinion, in which Gorsuch, J., joined.


AMGEN INC. et al. v. SANOFI et al.

Certiorari To The United States Court Of Appeals For The Federal Circuit

No. 21–757. Argued March 27, 2023—Decided May 18, 2023

This case concerns patents covering antibodies engineered by scientists that help reduce levels of low-density lipoprotein (LDL) cholesterol, sometimes called bad cholesterol because it can lead to cardiovascular disease, heart attacks, and strokes. To treat patients with high LDL cholesterol, scientists explored how antibodies might be used to inhibit PCSK9—a naturally occurring protein that binds to and degrades LDL receptors responsible for extracting LDL cholesterol from the bloodstream. Two pharmaceutical companies—Amgen and Sanofi—each developed a PCSK9-inhibiting drug. In 2011, Amgen obtained a patent for the antibody employed in its drug, and Sanofi received one covering the antibody used in its drug. Each patent describes the relevant antibody by its unique amino acid sequence. The dispute in this case concerns two additional patents Amgen obtained in 2014 that relate back to the company’s 2011 patent. These later-issued patents purport to claim for Amgen “the entire genus” of antibodies that (1) “bind to specific amino acid residues on PCSK9,” and (2) “block PCSK9 from binding to [LDL receptors].” 872 F. 3d 1367, 1372. As part of its submission to the patent office, Amgen identified the amino acid sequences of 26 antibodies that perform these two functions. Amgen then described two methods—one Amgen called “the roadmap” and a second it called “conservative substitution”—that scientists could use to make other antibodies that perform the binding-and-blocking functions described in the claims.

  After Amgen obtained the 2014 patents, it sued Sanofi for infringement. Sanofi replied that it was not liable to Amgen for infringement because Amgen’s relevant claims were invalid under the Patent Act’s “enablement” requirement. That provision requires a patent applicant to describe the invention “in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the [invention].” 35 U. S. C. §112(a). Sanofi characterized the methods Amgen outlined for generating additional antibodies as amounting to little more than a trial-and-error process of discovery, and thus contended that Amgen’s patents failed to meet the enablement requirement because they sought to claim for Amgen’s exclusive use potentially millions more antibodies than the company had taught persons skilled in the art to make. Both the district court and the Federal Circuit sided with Sanofi.

Held: The courts below correctly concluded that Amgen failed “to enable any person skilled in the art . . . to make and use the [invention]” as defined by the relevant claims. Pp. 7–19.

 (a) The patent “bargain” describes the exchange that takes place when an inventor receives a limited term of “protection from competitive exploitation” in exchange for bringing “new designs and technologies into the public domain through disclosure” for the benefit of all. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150. From the Patent Act’s beginnings, Congress has sought to ensure the benefit of this bargain for the public by requiring the patent applicant to deposit a “specification . . . so particular . . . as not only to distinguish the invention or discovery from other things before known and used, but also to enable a workman or other person skilled in the art or manufacture . . . to make, construct, or use the same.” 1 Stat. 110. Over time, Congress has left this “enablement” obligation largely intact.

 This Court has addressed the enablement requirement many times, and its decisions in O’Reilly v. Morse, 15 How. 62, The Incandescent Lamp Patent, 159 U. S. 465, and Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, reinforce the simple statutory command: If a patent claims an entire class of processes, machines, manufactures, or compositions of matter, the patent’s specification must enable a person skilled in the art to make and use the entire class. In Morse, for example, the Court held that one of the claims in Morse’s patent for a telegraphic system was “too broad, and not warranted by law.” 15 How., at 113. The problem was that the claim covered all means of achieving telegraphic communication, yet Morse’s specification did not describe how to make or use them all. See id., at 113–117. In Incandescent Lamp, inventors of an “electric lamp” with an “incandescing conductor” made of “carbonized paper” claimed that a lamp created by Thomas Edison infringed their patent because it used bamboo as a conductor. The Court sided with Edison because the rival inventors, rather than confining their claim to carbonized paper, “made a broad claim for every fibrous and textile material.” 159 U. S., at 472. That broad claim “might” have been permissible, the Court allowed, if the inventors had disclosed “a quality common” to fibrous and textile substances that made them “peculiarly” adapted to incandescent lighting, but they did not. Ibid. Finally, in Holland Furniture, a company that had developed a starch glue that was similar enough to animal glue to be used for wood veneering included a claim in its patent covering all “starch glue which, [when] combined with about three parts or less . . . of water, will have substantially the same properties as animal glue.” 277 U. S., at 251. The specification described the key input—the “starch ingredient”—in terms of its “use or function” rather than its “physical characteristics or chemical properties.” Id., at 256. The problem, as the Court put it, was that “[o]ne attempting to use or avoid the use of [the] discovery as so claimed and described functionally could do so only after elaborate experimentation” with different starches. Id., at 257.

 All this is not to say a specification always must describe with particularity how to make and use every single embodiment within a claimed class. It may suffice to give an example if the specification also discloses “some general quality . . . running through” the class that gives it “a peculiar fitness for the particular purpose.” Incandescent Lamp, 159 U. S., at 475. Nor is a specification necessarily inadequate just because it leaves the skilled artist to engage in some measure of adaptation or testing. See, e.g., Wood v. Underhill, 5 How. 1, 4–5. A specification may call for a reasonable amount of experimentation to make and use a claimed invention, and reasonableness in any case will depend on the nature of the invention and the underlying art. See Minerals Separation, Ltd. v. Hyde, 242 U. S. 261, 270–271. Pp. 7–15.

 (b) Turning to the patent claims at issue in this case, Amgen’s claims sweep much broader than the 26 exemplary antibodies it identifies by their amino acid sequences. Amgen has failed to enable all that it has claimed, even allowing for a reasonable degree of experimentation. Amgen’s claims bear more than a passing resemblance to the broadest claims in Morse, Incandescent Lamp, and Holland Furniture. While Amgen seeks to monopolize an entire class of things defined by their function—every antibody that both binds to particular areas of the sweet spot of PCSK9 and blocks PCSK9 from binding to LDL receptors—the record reflects that this class of antibodies does not include just the 26 that Amgen has described by their amino acid sequences, but a vast number of additional antibodies that it has not.

 Amgen insists that its claims are nevertheless enabled because scientists can make and use every functional antibody if they simply follow the “roadmap” or “conservative substitution.” These two approaches, however, amount to little more than two research assignments. The “roadmap” merely describes step-by-step Amgen’s own trial-and-error method for finding functional antibodies. Not much different, “conservative substitution” requires scientists to make substitutions to the amino acid sequences of antibodies known to work and then test the resulting antibodies to see if they do too.

 Amgen’s alternative arguments lack merit. Amgen first suggests that the Federal Circuit erred by conflating the question whether an invention is enabled with the question how long may it take a person skilled in the art to make every embodiment within a broad claim. But the Federal Circuit made clear that it was not treating as dispositive the cumulative time and effort required to make the entire class of antibodies. Amgen next argues that the Patent Act supplies a single, universal enablement standard, while the Federal Circuit applied a higher standard to Amgen’s claims that encompass an entire genus of embodiments defined by their function. The Court agrees in principle that there is one statutory enablement standard, but the Federal Circuit’s treatment in this case is entirely consistent with Congress’s directive and this Court’s precedents. Finally, while Amgen warns that a ruling against it risks destroying the incentives that lead to breakthrough inventions, since 1790 Congress has included an enablement mandate as one feature among many designed to achieve the balance it wishes to strike between incentivizing inventors and ensuring the public receives the full benefit of their innovations. In this case, the Court’s duty is to enforce the statutory enablement requirement according to its terms. Pp. 15–19.

10 F. 4th 1016, affirmed.

 Gorsuch, J., delivered the opinion for a unanimous Court.


ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH et al.

Certiorari To The United States Court Of Appeals For The Second Circuit

No. 21–869. Argued October 12, 2022—Decided May 18, 2023

In 2016, petitioner Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed to Condé Nast for $10,000 an image of “Orange Prince”—an orange silkscreen portrait of the musician Prince created by pop artist Andy Warhol—to appear on the cover of a magazine commemorating Prince. Orange Prince is one of 16 works now known as the Prince Series that Warhol derived from a copyrighted photograph taken in 1981 by respondent Lynn Goldsmith, a professional photographer. Goldsmith had been commissioned by Newsweek in 1981 to photograph a then “up and coming” musician named Prince Rogers Nelson, after which Newsweek published one of Goldsmith’s photos along with an article about Prince. Years later, Goldsmith granted a limited license to Vanity Fair for use of one of her Prince photos as an “artist reference for an illustration.” The terms of the license included that the use would be for “one time” only. Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. The magazine credited Goldsmith for the “source photograph” and paid her $400. After Prince died in 2016, Vanity Fair’s parent company (Condé Nast) asked AWF about reusing the 1984 Vanity Fair image for a special edition magazine that would commemorate Prince. When Condé Nast learned about the other Prince Series images, it opted instead to purchase a license from AWF to publish Orange Prince. Goldsmith did not know about the Prince Series until 2016, when she saw Orange Prince on the cover of Condé Nast’s magazine. Goldsmith notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith for a declaratory judgment of noninfringement or, in the alternative, fair use. Goldsmith counterclaimed for infringement. The District Court considered the four fair use factors in 17 U. S. C. §107 and granted AWF summary judgment on its defense of fair use. The Court of Appeals reversed, finding that all four fair use factors favored Goldsmith. In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast.

Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38.

 (a) AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, AWF’s use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, in the context of the challenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.

 (1) The Copyright Act encourages creativity by granting to the creator of an original work a bundle of rights that includes the rights to reproduce the copyrighted work and to prepare derivative works. 17 U. S. C. §106. Copyright, however, balances the benefits of incentives to create against the costs of restrictions on copying. This balancing act is reflected in the common-law doctrine of fair use, codified in §107, which provides: “[T]he fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright.” To determine whether a particular use is “fair,” the statute enumerates four factors to be considered. The factors “set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___.

 The first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), considers the reasons for, and nature of, the copier’s use of an original work. The central question it asks is whether the use “merely supersedes the objects of the original creation . . . (supplanting the original), or instead adds something new, with a further purpose or different character.” Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (internal quotation marks and citations omitted). As most copying has some further purpose and many secondary works add something new, the first factor asks “whether and to what extent” the use at issue has a purpose or character different from the original. Ibid. (emphasis added). The larger the difference, the more likely the first factor weighs in favor of fair use. A use that has a further purpose or different character is said to be “transformative,” but that too is a matter of degree. Ibid. To preserve the copyright owner’s right to prepare derivative works, defined in §101 of the Copyright Act to include “any other form in which a work may be recast, transformed, or adapted,” the degree of transformation required to make “transformative” use of an original work must go beyond that required to qualify as a derivative.

 The Court’s decision in Campbell is instructive. In holding that parody may be fair use, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue was 2 Live Crew’s copying of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap derivative, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by adding new lyrics and musical elements, such that “Pretty Woman” had a different message and aesthetic than “Oh, Pretty Woman.” But that did not end the Court’s analysis of the first fair use factor. The Court found it necessary to determine whether 2 Live Crew’s transformation rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. Further distinguishing between parody and satire, the Court explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no critical bearing on the substance or style of the original composition, . . . the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580.

 Campbell illustrates two important points. First, the fact that a use is commercial as opposed to nonprofit is an additional element of the first fair use factor. The commercial nature of a use is relevant, but not dispositive. It is to be weighed against the degree to which the use has a further purpose or different character. Second, the first factor relates to the justification for the use. In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create. In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user’s new purpose. Parody, for example, “needs to mimic an original to make its point.” Id., at 580–581. Similarly, other commentary or criticism that targets an original work may have compelling reason to “conjure up” the original by borrowing from it. Id., at 588. An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it. See, e.g., Google, 593 U. S., at ___ (slip op., at 26).

 In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying. Pp. 13–20.

  (2) The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §107. The same copying may be fair when used for one purpose but not another. See Campbell, 510 U. S., at 585. Here, Goldsmith’s copyrighted photograph has been used in multiple ways. The Court limits its analysis to the specific use alleged to be infringing in this case—AWF’s commercial licensing of Orange Prince to Condé Nast—and expresses no opinion as to the creation, display, or sale of the original Prince Series works. In the context of Condé Nast’s special edition magazine commemorating Prince, the purpose of the Orange Prince image is substantially the same as that of Goldsmith’s original photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince. The use also is of a commercial nature. Taken together, these two elements counsel against fair use here. Although a use’s transformativeness may outweigh its commercial character, in this case both point in the same direction. That does not mean that all of Warhol’s derivative works, nor all uses of them, give rise to the same fair use analysis. Pp. 20–27.

 (b) AWF contends that the purpose and character of its use of Goldsmith’s photograph weighs in favor of fair use because Warhol’s silkscreen image of the photograph has a different meaning or message. By adding new expression to the photograph, AWF says, Warhol made transformative use of it. Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or message.” 510 U. S., at 579. But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds new expression, meaning, or message. Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works, as many derivative works that “recast, transfor[m] or adap[t]” the original, §101, add new expression of some kind. The meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original. For example, the Court in Campbell considered the messages of 2 Live Crew’s song to determine whether the song had a parodic purpose. But fair use is an objective inquiry into what a user does with an original work, not an inquiry into the subjective intent of the user, or into the meaning or impression that an art critic or judge draws from a work.

 Even granting the District Court’s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The purpose of AWF’s recent commercial licensing of Orange Prince was to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith’s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context and commercial nature of the use. To hold otherwise might authorize a range of commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.

 AWF asserts another related purpose of Orange Prince, which is to comment on the “dehumanizing nature” and “effects” of celebrity. No doubt, many of Warhol’s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But even if such commentary is perceptible on the cover of Condé Nast’s tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the man’s death, the asserted commentary is at Campbell’s lowest ebb: It “has no critical bearing on” Goldsmith’s photograph, thus the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).” Campbell, 510 U. S., at 580. The commercial nature of the use, on the other hand, “loom[s] larger.” Ibid. Like satire that does not target an original work, AWF’s asserted commentary “can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 581. Moreover, because AWF’s copy-ing of Goldsmith’s photograph was for a commercial use so similar to the photograph’s typical use, a particularly compelling justification is needed. Copying the photograph because doing so was merely helpful to convey a new meaning or message is not justification enough. Pp. 28–37.

 (c) Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose. AWF has offered no other persuasive justification for its unauthorized use of the photograph. While the Court has cautioned that the four statutory fair use factors may not “be treated in isolation, one from another,” but instead all must be “weighed together, in light of the purposes of copy-right,” Campbell, 510 U. S., at 578, here AWF challenges only the Court of Appeals’ determinations on the first fair use factor, and the Court agrees the first factor favors Goldsmith. P. 38.

11 F. 4th 26, affirmed.

 Sotomayor, J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Jackson, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Jackson, J., joined. Kagan, J., filed a dissenting opinion, in which Roberts, C. J., joined.


TWITTER, INC. v. TAAMNEH et al.

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 21–1496. Argued February 22, 2023—Decided May 18, 2023

In 2017, Abdulkadir Masharipov carried out a terrorist attack on the Reina nightclub in Istanbul, Turkey, on behalf of the Islamic State of Iraq and Syria (ISIS), a designated Foreign Terrorist Organization. Masharipov killed Nawras Alassaf and 38 others. Alassaf’s family then brought this suit under 18 U. S. C. §2333, an Antiterrorism Act (ATA) provision that permits U. S. nationals who have been “injured . . . by reason of an act of international terrorism” to file a civil suit for damages. Instead of suing ISIS directly under §2333(a), the plaintiffs (respondents here) invoked §2333(d)(2) to sue three of the largest social-media companies in the world—Facebook, Twitter (petitioner here), and Google (which owns YouTube)—for aiding and abetting ISIS.

  The parties today agree on the basic aspects of these platforms: Billions of people from around the world have signed up for them and upload massive amounts of content each day. Defendants profit from that content by placing advertisements on or near it and use “recommendation” algorithms that match content, advertisements, and users based on information about the use, advertisement, and content being viewed. As the parties represent things, the algorithms here match any content with any user who is more likely to view that content, and the platforms perform little to no front-end screening on any content before it is uploaded.

  Plaintiffs, however, allege that for several years the companies have knowingly allowed ISIS and its supporters to use their platforms and “recommendation” algorithms as tools for recruiting, fundraising, and spreading propaganda; plaintiffs further allege that these companies have, in the process, profited from the advertisements placed on ISIS’ tweets, posts, and videos. The District Court dismissed the complaint for failure to state a claim, but the Ninth Circuit reversed.

Held: Plaintiffs’ allegations that these social-media companies aided and abetted ISIS in its terrorist attack on the Reina nightclub fail to state a claim under 18 U. S. C. §2333(d)(2). Pp. 6–31.

 (a) In 2016, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) to impose secondary civil liability on anyone “who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” §2333(d)(2). The question here is whether the conduct of the social-media company defendants gives rise to aiding-and-abetting liability for the Reina nightclub attack. Pp. 6–8.

 (b) The text of JASTA begs two questions: What does it mean to “aid and abet”? And, what precisely must the defendant have “aided and abetted”? Pp. 8–21.

  (1) Nothing in the statute defines any of the critical terms in the phrase “aids and abets, by knowingly providing substantial assistance.” The term “aids and abets,” however, is a familiar common-law term and thus presumably “brings the old soil” with it. Sekhar v. United States, 570 U. S. 729, 733. Congress also provided additional context in JASTA by pointing to Halberstam v. Welch, 705 F. 2d 472, as “provid[ing] the proper legal framework” for “civil aiding and abetting and conspiracy liability.” 130 Stat. 852. Halberstam’s legal framework, viewed in context of the common-law tradition from which it arose, confirms that “aids and abets” in §2333(d)(2) refers to a conscious, voluntary, and culpable participation in another’s wrongdoing. Pp. 9–17.

   (i) In Halberstam, the D. C. Circuit undertook an extensive survey of the common law with respect to aiding and abetting and synthesized the surveyed cases as resting on three main elements: (1) there must be a wrongful act causing an injury performed by the person whom the defendant aided; (2) at the time assistance was provided, the defendant must have been “generally aware of his role as part of an overall illegal or tortious activity;” and (3) the defendant must have “knowingly and substantially assist[ed] the principal violation.” 705 F. 2d, at 477. The court then articulated six factors to help determine whether a defendant’s assistance was “substantial.” They are (1) “the nature of the act assisted,” (2) the “amount of assistance” provided, (3) whether the defendant was “present at the time” of the principal tort, (4) the defendant’s “relation to the tortious actor,” (5) the “defendant’s state of mind,” and (6) the “duration of the assistance” given. Id., at 488 (emphasis deleted). Halberstam also clarified that those who aid and abet “a tortious act may be liable” not only for the act itself but also “for other reasonably foreseeable acts done in connection with it.” Id., at 484. Finally, the court warned that its formulations should “not be accepted as immutable components” but should be “adapted as new cases test their usefulness in evaluating vicarious liability.” Id., at 489. Pp. 9–11.

   (ii) Because the allegations here—involving international terrorist networks and world-spanning internet platforms—are a far cry from the facts of Halberstam, the Court must ascertain the basic thrust of Halberstam’s elements to determine how to adapt them to the facts of this case. To do so, the Court turns to the common law of aiding and abetting upon which Halberstam rested, and to which JASTA’s common-law terminology points. At common law, the basic “view of culpability” animating aiding and abetting liability is that “a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.” Rosemond v. United States, 572 U. S. 65, 70. However, the concept of “helping” in the commission of a crime or a tort has never been boundless and ordinarily requires some level of blameworthy conduct; those limits ensure that aiding and abetting does not sweep in mere passive bystanders or those who, for example, simply deliver mail that happens to aid criminals. In tort law, many cases have thus required a voluntary, conscious, and culpable participation in the wrongful conduct to establish aiding and abetting. In doing so, they further articulated Halberstam’s framework to capture those limits. As above, that framework requires that the defendant give knowing and substantial assistance to the primary tortfeasor; notably, courts often viewed those twin requirements as working in tandem, with a lesser showing of one demanding a greater showing of the other to establish a conscious, culpable participation in the tort. Pp. 11–16.

   (iii) Halberstam differentiated types of aid along the same culpability axis that grounded the common law. And its six factors for “substantial assistance” call for the same balancing that courts had undertaken previously between the nature and amount of assistance and the defendant’s scienter. Pp. 16–17.

  (2) The parties then vigorously dispute what precisely a defendant must aid and abet under §2333(d)(2). Plaintiffs assert that it is “the person,” while defendants insist that it is the “act of international terrorism.” That syntactic dispute makes little difference here, because aiding and abetting is inherently a rule of secondary liability for specific wrongful acts. In the tort context, liability is imposed only when someone commits (not merely agrees to commit) an actual tort. And in this case, the ATA limits that liability to injuries caused by an “act of international terrorism,” §2333(a). It thus is not enough for a defendant to have given substantial assistance to a transcendent enterprise. A defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong—here, an act of international terrorism. However, that does not require a strict nexus between the assistance and the wrongful act; defendants are liable for other torts that are the foreseeable risk of an intended tort, and an aider and abettor can assist someone without knowing all the details of his plan. Plus, in appropriate circumstances, a defendant’s role in an illicit enterprise can be so systemic and intentional that the defendant aids and abets each act of the enterprise—as in Halberstam itself.

 To summarize the requirements of §2333(d)(2), the phrase “aids and abets, by knowingly providing substantial assistance” points to the elements and factors articulated by Halberstam. Those elements and factors should not be taken as inflexible codes but should be understood in light of the common law and applied as a framework designed to hold defendants liable when they consciously and culpably “participate[d] in” a tortious act in such a way as to help “make it succeed.” Nye & Nissen v. United States, 336 U. S. 613, 619. Pp. 17–21.

 (c) Plaintiffs have satisfied Halberstam’s first two elements by alleging both that ISIS committed a wrong and that defendants knew they were playing some sort of role in ISIS’ enterprise. But plaintiffs’ allegations do not show that defendants gave such knowing and substantial assistance to ISIS that they culpably participated in the Reina attack. Pp. 21–30.

  (1) Plaintiffs allege that defendants aided and abetted ISIS in the following ways: First, they provided social-media platforms, which are generally available to the internet-using public; ISIS was able to upload content to those platforms and connect with third parties on them. Second, defendants’ recommendation algorithms matched ISIS-related content to users most likely to be interested in that content. And, third, defendants knew that ISIS was uploading this content but took insufficient steps to ensure that its content was removed. Plaintiffs do not allege that ISIS or Masharipov used defendants’ platforms to plan or coordinate the Reina attack. Nor do plaintiffs allege that defendants gave ISIS any special treatment or words of encouragement. Nor is there reason to think that defendants carefully screened any content before allowing users to upload it onto their platforms.

 None of plaintiffs’ allegations suggest that defendants culpably “associate[d themselves] with” the Reina attack, “participate[d] in it as something that [they] wishe[d] to bring about,” or sought “by [their] action to make it succeed.” Nye & Nissen, 336 U. S., at 619 (internal quotation marks omitted). Defendants’ mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the internet generally. And defendants’ recommendation algorithms are merely part of the infrastructure through which all the content on their platforms is filtered. Moreover, the algorithms have been presented as agnostic as to the nature of the content. At bottom, the allegations here rest less on affirmative misconduct and more on passive nonfeasance. To impose aiding-and-abetting liability for passive nonfeasance, plaintiffs must make a strong showing of assistance and scienter. Plaintiffs fail to do so.

 First, the relationship between defendants and the Reina attack is highly attenuated. Plaintiffs make no allegations that defendants’ relationship with ISIS was significantly different from their arm’s length, passive, and largely indifferent relationship with most users. And their relationship with the Reina attack is even further removed, given the lack of allegations connecting the Reina attack with ISIS’ use of these platforms. Second, plaintiffs provide no reason to think that defendants were consciously trying to help or otherwise participate in the Reina attack, and they point to no actions that would normally support an aiding-and-abetting claim.

 Plaintiffs’ complaint rests heavily on defendants’ failure to act; yet plaintiffs identify no duty that would require defendants or other communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends. Even if such a duty existed in this case, it would not transform defendants’ distant inaction into knowing and substantial assistance that could establish aiding and abetting the Reina attack. And the expansive scope of plaintiffs’ claims would necessarily hold defendants liable as having aided and abetted each and every ISIS terrorist act committed anywhere in the world. The allegations plaintiffs make here are not the type of pervasive, systemic, and culpable assistance to a series of terrorist activities that could be described as aiding and abetting each terrorist act by ISIS.

 In this case, the failure to allege that the platforms here do more than transmit information by billions of people—most of whom use the platforms for interactions that once took place via mail, on the phone, or in public areas—is insufficient to state a claim that defendants knowingly gave substantial assistance and thereby aided and abetted ISIS’ acts. A contrary conclusion would effectively hold any sort of communications provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them. That would run roughshod over the typical limits on tort liability and unmoor aiding and abetting from culpability. Pp. 21–27.

  (2) The Ninth Circuit’s analysis obscured the essence of aiding-and-abetting liability. First, the Ninth Circuit framed the issue of substantial assistance as turning on defendants’ assistance to ISIS’ activities in general, rather than with respect to the Reina attack. Next, the Ninth Circuit misapplied the “knowing” half of “knowing and substantial assistance,” which is designed to capture the defendants’ state of mind with respect to their actions and the tortious conduct (even if not always the particular terrorist act). Finally, the Ninth Circuit appears to have regarded Halberstam’s six substantiality factors as a sequence of disparate, unrelated considerations without a common conceptual core. In doing so, the Ninth Circuit focused primarily on the value of defendants’ platforms to ISIS, rather than whether defendants culpably associated themselves with ISIS’ actions. Pp. 27–29.

  (3) There is also one set of allegations specific to Google: that Google reviewed and approved ISIS videos on YouTube as part of a revenue-sharing system and thereby shared advertising revenue with ISIS. But the complaint here alleges nothing about the amount of money that Google supposedly shared with ISIS, the number of accounts approved for revenue sharing, or the content of the videos that were approved. Nor does it give any other reason to view Google’s revenue sharing as substantial assistance. Without more, plaintiffs thus have not plausibly alleged that Google knowingly provided substantial assistance to the Reina attack, let alone (as their theory of liability would require) every single terrorist act committed by ISIS. Pp. 29–30.

 (d) The concepts of aiding and abetting and substantial assistance do not lend themselves to crisp, bright-line distinctions. Applying the guideposts provided by the common law and Halberstam, the nexus between defendants and the Reina attack is far removed. As alleged by plaintiffs, defendants designed virtual platforms and knowingly failed to do “enough” to remove ISIS-affiliated users and ISIS-related content from their platforms. Yet, plaintiffs have failed to allege that defendants intentionally provided any substantial aid to the Reina attack or otherwise consciously participated in it—much less that defendants so pervasively and systemically assisted ISIS as to render them liable for every ISIS attack. Plaintiffs accordingly have failed to state a claim under §2333(d)(2). Pp. 30–31.

2 F. 4th 871, reversed.

 Thomas, J., delivered the opinion for a unanimous Court. Jackson, J., filed a concurring opinion.