U.S. Supreme Court Narrows Secondary Liability in Copyright Law–Cox v. Sony (Guest Blog Post)
Guest Blog Post by Prof. Tyler Ochoa
On March 25, the U.S. Supreme Court unanimously held that Cox Communications, an internet access provider, is not liable for file-sharing infringements committed by its users. Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 (U.S. March 25, 2026). In so holding, the Court rejected a $1 billion jury verdict in favor of Sony and other copyright owners (which the Fourth Circuit had already held should be remanded for retrial, but only on damages). The majority opinion (by Justice Thomas, for seven justices) also seemingly rejected the “knowledge plus material contribution” standard for contributory infringement that has been used by the Courts of Appeals in case law for over 50 years. Two concurring justices (Sotomayor, joined by Jackson) would have preserved that standard, but they would have interpreted it more narrowly than the Fourth Circuit had done.
The decision is a decisive victory for Cox and other internet access providers, and it will be welcomed by any defendant facing claims of contributory infringement. (The Court did not purport to decide any issues regarding vicarious liability, but the opinion may be helpful to those defendants as well.) The decision is also a stinging loss for major copyright owners, who have been trying for years to get courts to hold internet service providers and other intermediaries liable for copyright infringements committed by their users. The opinion makes it significantly harder to do that. Copyright owners will likely seek legislative relief, but it seems unlikely that Congress will be able to agree on legislation that will satisfy the major interest groups. I also predict that defendants facing secondary liability claims in trademark cases will try to use the opinion to narrow contributory infringement in trademark law as well.
If you are not already familiar with secondary liability in copyright law, some background is needed to understand the full implications. If you are already familiar with the existing law and the facts, you can skip straight to my analysis of the majority opinion.
Secondary Liability Before the 1976 Act
The first Supreme Court case to find contributory infringement was Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911). The Second Circuit explained the facts:
The late Gen. Lew Wallace wrote a story called ‘Ben Hur,’ the copyright of which belongs to the complainants Harper & Bros. The complainants Klaw & Erlanger caused the story to be dramatized, and Harper & Bros. duly copyrighted the dramatization and thereupon granted Klaw & Erlanger the sole right of producing the same upon the stage. The defendant the Kalem Company also employed a writer to read the story, without having any knowledge of the copyrighted drama, and to write a description of certain portions of it. It then produced persons and animals, with their accouterments, to perform the actions and motions so described … from which a positive film suitable for exhibition purposes was reproduced.
Harper & Bros. v. Kalem Co., 161 F. 61, 62 (2d Cir. 1909). Under the 1870 Act (as amended), the copyright owner of a book had “the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors or their assigns shall have [the] exclusive right to dramatize or translate any of their works for which copyright shall have been obtained.” The Second Circuit held that the 15-minute film did not itself infringe the publisher’s rights: “as pictures only represent the artist’s idea of what the author has expressed in words, they do not infringe a copyrighted book or drama, and should not as a photograph be enjoined.” 161 F. at 63. When the film was exhibited in theaters, however, that violated the exclusive rights to dramatize and to publicly perform the novel, and the producers were liable for those actions:
It is next objected that the defendant cannot be held as a contributory infringer, because its films are capable of innocent use; e.g., exhibitions for private amusement. This fact only compels the complainants to prove that the defendant does promote a guilty use of them. Inasmuch as it advertises the films as capable of producing a moving picture spectacle of Ben Hur, and sends its advertisements to proprietors of theatoriums with the expectation and hope that they will use them for public exhibitions, charging an entrance fee, and inasmuch as many of these proprietors have so used them, the defendant is clearly guilty of contributory infringement.
161 F. at 64. On appeal, the Supreme Court assumed without deciding that the first holding was correct, and it then affirmed the second holding:
It is said that pictures of scenes in a novel may be made and exhibited without infringing the copyright, and that they may be copyrighted themselves. Indeed, it was conceded by the circuit court of appeals that these films could be copyrighted, and, we may assume, could be exhibited as photographs. Whether this concession is correct or not, in view of the fact that they are photographs of an unlawful dramatization of the novel, we need not decide. We will assume that it is. But it does not follow that the use of them in motion does not infringe the author’s rights. The most innocent objects … may be used for unlawful purposes. And if, as we have tried to show, moving pictures may be used for dramatizing a novel, when the photographs are used in that way, they are used to infringe a right which the statute reserves.
… [I]t is said that the defendant did not produce the [dramatic] representations, but merely sold the films to jobbers, and on that ground ought not to be held. In some cases where an ordinary article of commerce is sold nice questions may arise as to the point at which the seller becomes an accomplice in a subsequent illegal use by the buyer. It has been held that mere indifferent supposition or knowledge on the part of the seller that the buyer of spirituous liquor [is] contemplating such unlawful use is not enough to connect him with the possible unlawful consequences…. But no such niceties are involved here. The defendant not only expected but invoked by advertisement the use of its films for dramatic reproduction of the story. That was the most conspicuous purpose for which they could be used, and the one for which especially they were made. If the defendant did not contribute to the infringement, it is impossible to do so except by taking part in the final act. It is liable on principles recognized in every part of the law.
222 U.S. at 62-63.
Six decades later, the Second Circuit set forth the standard formulation of secondary liability used in the Courts of Appeals (until now), in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971). The Gershwin court held there are two types of secondary liability: “vicarious” liability (based on the relationship between the direct infringer and the person to be held liable) and “contributory” infringement:
Although the Act does not specifically delineate what kind or degree of participation in an infringement is actionable, it has long been held that one may be liable for copyright infringement even though he has not himself performed the protected composition. For example, a person who has promoted or induced the infringing acts of the performer has been held jointly and severally liable as a “vicarious” infringer, even though he has no actual knowledge that copyright monopoly is being impaired. Although vicarious liability was initially predicated upon the agency doctrine of respondeat superior, this court recently held that even in the absence of an employer-employee relationship one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities. Shapiro, Bernstein & Co., Inc. v. H. L. Green Co., [316 F.2d 304, 307 (2d Cir. 1963)].
Similarly, one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a “contributory” infringer….
443 F.2d at 1161-62.
Meanwhile, in Patent Law
In patent law, two sub-types of “contributory” infringement were separated and codified in the 1952 Patent Act, at 35 U.S.C. § 271:
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
(c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
In Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), the Supreme Court reaffirmed “that induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement.” 563 U.S. at 766. Thus, “deliberate indifference to a known risk that a patent exists is not the appropriate standard under § 271(b).” Id. Nonetheless, the Court affirmed the holding that Pentalpha was liable for active inducement, holding that “willful blindness” can substitute for actual knowledge of a patent. Id. at 766, 768. For willful blindness, “[t]he defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.” 563 U.S. at 769. In other words, “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing.” Id. Neither recklessness (“one who merely knows of a substantial and unjustified risk of such wrongdoing”) nor negligence (“one who should have known of a similar risk but, in fact, did not”) is sufficient to show inducement. Id. at 770.
Secondary Liability After 1976 and Before Cox
The 1976 Copyright Act did not expressly address secondary liability. Section 106 of the Act grants the copyright owner “the exclusive rights to do and to authorize” five activities (reproduction, prepare derivative works, public distribution, public performance, and public display); and the legislative history stated “[u]se of the phrase ‘to authorize’ is intended to avoid any question as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.” H.R. Rep. No. 94-1476, at 61 (1976).
Another paragraph in the legislative history addressed vicarious liability:
The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment … from liability for copyright infringement, committed by an independent contractor.… A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.
H.R. Rep. 94-1476, at 159-60 (1976). Apparently, Congress did not anticipate the rise of so-called textualism as a dominant (but inconsistently applied) principle of statutory interpretation, with the concomitant reluctance of textualist judges to read and rely on legislative history, or to interpret a statute in light of existing common-law principles.
The first major case that arose under the 1976 Act was Sony Corp. of America v. Universal City Studios, Inc., 484 U.S. 417 (1984). (The case actually was filed before the effective date of the new Act; but the trial included two instances of infringement that occurred after the effective date, January 1, 1978; and both the Ninth Circuit and the Supreme Court primarily cited and relied on the 1976 Act.)
In Sony, Universal and Disney sued Sony for making and distributing the Sony Betamax, the first VCR for home use. They argued that consumers used the VCR to make reproductions of its over-the-air broadcast programs without its consent (direct infringement), and that Sony should be held liable for contributory infringement for providing the means to make those infringements. The District Court refused to grant a preliminary injunction and held after a bench trial that Sony was not liable; but the Ninth Circuit reversed, holding that Sony was liable; and the Supreme Court granted certiorari.
At the time of trial, there were only about 800,000 VCRs in the United States; but by the time the case reached the Supreme Court (it was argued in January 1983), about 10 million VCRs had been sold. As Prof. Jessica Litman has previously reported, the Justices initially voted 5-4 to affirm, and Justice Blackmun was assigned the majority opinion, while Justice Stevens undertook to pen the dissent. Justice O’Connor, however, had second thoughts and could not agree with Justice Blackmun’s opinion. The Court could not reach a consensus by June, so the case was reargued in October 1983. When the opinion was issued in January 1984, Justice O’Connor had switched her vote, giving Justice Stevens a 5-4 majority.
Justice Stevens’s majority opinion borrowed the “staple article of commerce” doctrine from patent law (codified in 35 U.S.C. § 271(b)), saying:
We recognize there are substantial differences between the patent and copyright laws. But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective — not merely symbolic — protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses….
The question is thus whether the Betamax is capable of commercially significant noninfringing uses….
464 U.S. at 442. Note that the majority opinion worded its standard in three different ways in three consecutive sentences, and that none of those three sentences exactly matches the wording of the patent statute (“suitable for substantial non-infringing use”).
The majority then held there were two “substantial noninfringing uses” for the Betamax VCR: authorized time-shifting, and unauthorized time-shifting. First, Justice Stevens noted that although Universal and Disney objected to consumers recording broadcast television on their VCRs, other copyright holders consented to such use. Representatives of the four major sports leagues (NFL, NBA, MLB, and NHL) all testified that they had no objection to consumers recording their broadcasts and watching them at a later time. 464 U.S. at 444. What may have sealed the case was the testimony of children’s television host Mr. Rogers, who testified he thought it was great that parents could record his show and watch it with their children together when they were all at home. Id. at 445 & n.27. Second, Justice Stevens also held that even unauthorized time-shifting was a fair use under Section 107 of the newly-enacted Copyright Act of 1976. Id. at 447-55.
One decade later, internet service providers faced a real possibility of being held liable for infringements committed by their users. They succeeded in getting Congress to enact the Online Copyright Infringement Liability Limitation Act at Title II of the Digital Millennium Copyright Act (or DMCA). Codified at 17 U.S.C. § 512, the Act established four “safe harbors” for internet service providers engaging in certain types of activities: (a) “transitory digital network communications” (internet access and “backbone”); (b) “system caching” (temporary storage of material to facilitate access); (c) “hosting” of information posted by users; and (d) “information location tools” (indexing and linking).
To qualify for the (b), (c), and (d) safe harbors, a service provider must comply with the “notice-and-takedown” provisions in section 512(c). (Notably, internet access providers like Cox are not required to comply with the notice-and-takedown provisions, because there is nothing for them to “take down”: by the time Cox is notified of infringing activity, it has already occurred; whereas the other three categories of service provider can take steps to prevent further infringement.) And to qualify for any of the safe harbors, a service provider must have “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.” [17 U.S.C. § 512(i)(1)(A).] However, the safe harbors do not require a service provider to “monitor[] its service or affirmatively seek[] facts indicating infringing activity” [17 U.S.C. § 512(m)(1)]; and “[t]he failure … to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing.” [17 U.S.C. § 512(l).]
The section 512(c) and (d) safe harbors were also conditioned on the absence of facts that might otherwise make the service provider liable for infringement. For those safe harbors, the service provider must show it:
(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement …, responds expeditiously to remove, or disable access to, the material that is claimed to be infringing….
17 U.S.C. § 512(c)(1), (d)(1). Courts have interpreted these conditions narrowly. Both “actual knowledge” and so-called “red flag” knowledge have to be knowledge of specific infringing activity to trigger the duty “expeditiously to remove,” because otherwise, the service provider would have to “affirmatively seek[] facts indicating infringing activity.” And the “right and ability to control such activity” has to mean “something more” than the mere ability “to remove or disable access to” the infringing material, because otherwise, satisfaction of condition (A)(iii) would render it impossible to satisfy condition (B). See Viacom Int’l, Inc. v. YouTube, Inc., 679 F.3d 19, 30-32, 37-38 (2d Cir. 2012); UMG Recordings, Inc. v. Shelter Capital Partners, 718 F.3d 1006, 1020-23, 1029-30 (9th Cir. 2013).
Between the enactment of the DMCA and the cases interpreting it, courts had to confront secondary liability in a series of cases involving peer-to-peer file-sharing. In A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), for example, Napster provided software that uploaded the file names (but not the files themselves) of all MP3 files on a user’s system to a central index on the Napster website. A user could search the file-name index; and when the user clicked on a file name, the Napster software would initial a transfer of the file itself from one user to another (“peer to peer”). The infringing files themselves were never uploaded to or stored on the Napster servers. The Ninth Circuit discussed whether and how Napster should be held liable for the infringing conduct of its users:
[C]ontributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works….
Conversely, Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files.
239 F.3d at 1027. The Ninth Circuit affirmed that copyright owners were likely to succeed on both theories, although it modified the preliminary injunction. Unable to comply with the modified injunction, Napster was forced to shut down.
In Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc., 545 U.S. 913 (2005), the U.S. Supreme Court confronted two successors to Napster, Grokster and StreamCast (Morpheus), both of whom tried to avoid Napster’s fate by providing peer-to-peer file-sharing software that did not rely on a centralized index. (Grokster’s software stored the index on various “supernodes,” while Morpheus passed a user’s search request from computer-to-computer and sent matching file names to the requesting user.) It was thus impossible to enjoin the operation of the software, because once it was distributed, Grokster and StreamCast had no control over how it was used. The Ninth Circuit held that distribution of the software was lawful under Sony because the software was capable of substantial non-infringing uses, even though it was being used primarily to infringe. The Supreme Court reversed; and in doing so, it re-interpreted Sony as a case about intent:
Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement. The Ninth Circuit has read Sony’s limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties’ infringing use of it[,] … even when an actual purpose to cause infringing use is shown by evidence independent of design and distribution of the product….
Sony’s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law….
545 U.S. at 933-35. The Court added that “[t]he classic case of direct evidence of unlawful purpose occurs when one induces commission of infringement by another, or entices or persuades another to infringe, as by advertising.” Id. at 935 (cleaned up). Accordingly,
For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device 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.
545 U.S. at 936-37. The Court cautioned, however, that “mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability.” Id. at 937 (emphasis added). Instead, “[t]he inducement rule … premises liability on purposeful, culpable expression and conduct.” Id.
The Court found such “purposeful, culpable expression and conduct” in three types of evidence. “First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users.” 545 U.S. at 939. “Second, … neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software.” Id. Third, the software streamed ads to active users, so “the more the software is used, the more ads are sent out and the greater the advertising revenue becomes.” Id. at 940. The Court cautioned that the second type of evidence would not be sufficient by itself, id. at 939 n.12; but combined with the other types of evidence, “the unlawful objective is unmistakable.” Id. at 940.
Over time, the substantive law of contributory infringement started to converge with the statutory standard for the § 512(c) safe harbor. For example, in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), the Ninth Circuit held that
[A] computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet [it] continues to provide access to infringing works.
508 F.3d at 1172 (internal quotes and citations omitted; emphasis in original). Accord, UMG Recordings, Inc. v. Grande Comms. Network, LLC, 118 F.4th 697, 715-16 (5th Cir. 2024). Note that after Cox, the Supreme Court granted certiorari in UMG v. Grande, vacated the decision, and remanded for reconsideration in light of Cox v. Sony. UMG v. Grande, No. 24-967 (U.S. April 6, 2026).
The Cox Facts and Procedural Posture
In 2013-2014, Sony and other record labels sent over 163,000 notices of claimed infringement to Cox, an internet access provider. The notices claimed that infringing files were being made available online by users of the BitTorrent protocol, and Sony’s agent MarkMonitor identified the allegedly infringing users (or accounts) by their Internet Protocol (IP) addresses. Although internet access providers like Cox are not subject to the DMCA’s notice-and-takedown provisions, Sony argued that Cox had a common-law obligation to do something about infringing users.
Cox responded with a 13-strike policy, starting with polite requests to subscribers that they should not infringe and ultimately escalating to terminating subscribers’ accounts. During the two-year period, Cox terminated only 32 subscribers for alleged repeat infringement; it also terminated hundreds of thousands of subscribers for nonpayment.
As a result, in a previous decision, the Fourth Circuit held that Cox was ineligible for the section 512 safe harbor, because it had not “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.” 17 U.S.C. § 512(i)(1)(A); see BMG Rights Mgmt. (US) LLC v. Cox Comms., Inc., 881 F.3d 293 (4th Cir. 2018).
After a 12-day jury trial, the jury found against Cox on both contributory infringement and vicarious liability, and it further found that the infringement was willful. The jury awarded slightly less than $100,000 in statutory damages for each of the 10,017 works at issue, for a total of $1 billion in statutory damages. On post-trial motions, the district court largely upheld the verdict; but it agreed there was overlap in the number of works (only one award of statutory damages may be made for a sound recording of a musical work, even though there are two copyrights), so the total verdict had to be adjusted. Sony Music Entertainment vs. Cox Comms., Inc., 464 F. Supp. 3d 795 (E.D. Va. 2020).
On appeal, “Cox argue[d] that it does not profit directly from its subscribers’ infringement because ‘[a]ll subscribers pay Cox a flat monthly fee for their internet access package no matter what they do online.’ Whether a subscriber uses her internet access for lawful or unlawful purposes, Cox receives the same monthly fee, and a subscriber’s decision to download or distribute a copyrighted song without permission does not benefit Cox.” Sony Music Entertainment vs. Cox Comms., Inc., 93 F.4th 222, 230 (4th Cir. 2024).
The Fourth Circuit agreed: “The continued payment of monthly fees for internet service, even by repeat infringers, was not a financial benefit flowing directly from the copyright infringement itself. As Cox points out, subscribers paid a flat monthly fee for their internet access no matter what they did online. Indeed, Cox would receive the same monthly fees even if all of its subscribers stopped infringing.” Id. at 232 (emphasis in original). Evidence that 13% of Cox’s network traffic was attributable to peer-to-peer file-sharing, and that users who were the subject of 20 or more notices of claimed infringement paid higher monthly fees for increased data usage, did not “raise[] a reasonable inference that any Cox subscriber paid more for faster internet in order to engage in copyright infringement. As Sony’s expert testified, other data intensive activities include legally streaming movies, television shows, and music, as well as playing video games. Subscribers may have purchased high speed internet for lawful streaming and downloads or because their households had many internet users…. Sony has not identified any evidence that customers were attracted to Cox’s internet service or paid higher monthly fees because of the opportunity to infringe Plaintiffs’ copyrights.” Id. at 233.
The Fourth Circuit, however, did uphold the verdict of contributory infringement. It first upheld the district court’s ruling on summary judgment that Sony had established the knowledge element as a matter of law, because “Cox did not argue to the district court, as it does now on appeal, that notices of past infringement failed to establish its knowledge that the same subscriber was substantially certain to infringe again.” Id. at 234. On the material contribution prong, Cox argued “that it cannot be liable for materially contributing to copyright infringement because the internet service it provides is capable of substantial lawful use and not designed to promote infringement.” Id. at 236. The Fourth Circuit agreed that “what matters is not simply whether the product has some or even many non-infringing uses, but whether the product is distributed with the intent to cause copyright infringement.” Id. (emphasis in original, citing Grokster). And it further agreed that “‘mere failure to take affirmative steps to prevent infringement’ does not establish contributory liability ‘in the absence of other evidence of intent.’” Id. (quoting Grokster). Nonetheless, it held there was sufficient evidence of intent:
The evidence at trial, viewed in the light most favorable to Sony, showed more than mere failure to prevent infringement. The jury saw evidence that Cox knew of specific instances of repeat copyright infringement occurring on its network, that Cox traced those instances to specific users, and that Cox chose to continue providing monthly internet access to those users despite believing the online infringement would continue because it wanted to avoid losing revenue.
Id. Finally, “[h]aving reversed on one theory of liability and affirmed on the other,” the Fourth Circuit held that the case had to be remanded for a new trial on damages.
Both parties filed petitions for certiorari. The Supreme Court denied Sony’s petition, which sought review on the question: “Whether the profit requirement of vicarious copyright infringement permits liability where the defendant expects commercial gain from the enterprise in which infringement occurs …, or whether the profit requirement of vicarious copyright infringement permits liability only where the defendant expects commercial gain from the act of infringement itself.” Petition for a Writ of Certiorari , Sony Music Entertainment v. Cox Comms., Inc., No. 24-181 (U.S. filed Aug. 16, 2024), cert. denied, 145 S.Ct. 2844 (U.S. June 30, 2025). But on the recommendation of the Solicitor General, the Supreme Court granted Cox’s petition, which presented two questions:
Did the Fourth Circuit err in holding that a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?
Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c)?
Petition for a Writ of Certiorari, Cox Comms., Inc. v. Sony Music Entertainment, No. 24-171 (U.S. filed Aug. 15, 2024), cert. granted, 145 S.Ct. 2841 (U.S. June 30, 2025). The second question received little attention at oral argument, and the Court did not directly address it in the written opinion. Nonetheless, given the Court’s holding on the first question, one can infer that “mere knowledge of another’s direct infringement” will not suffice to find that a contributory infringer acted “willfully” for purposes of statutory damages.
The Majority Opinion
Justice Thomas’ majority opinion (for seven justices) is brief: just ten pages, four of which are devoted to the facts and procedural posture. At the end of a short introduction, he states the Court’s conclusion: “a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.” [Slip op. at 1] That brief conclusion breaks little new ground; it is essentially a restatement of the holding of the Sony Betamax case, with “service” substituted for “product.” It is the application of that standard to these facts that is controversial, especially since the Fourth Circuit had specifically held there was sufficient evidence that Cox intended to cause infringement.
On the second page, the majority restates some basic principles from Grokster:
The provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement. To establish that a provider intended its service to be used for infringement, a copyright owner must show one of two things. First, it can show that a party affirmatively “induc[ed]” the infringement. Ibid. Or, second, it can show that the party sold a service tailored to infringement. Id., at 942 (Ginsburg, J., concurring). Patent law, with which copyright law has a “historic kinship,” … tracks these two requirements. See 35 U. S. C. §§271(b), (c). [Slip op. at 2]
Previous opinions (Grokster and Sony) had established there was liability if either of those two things was shown. What is new is that these are apparently the only two means that will render a service provider contributorily liable. The majority is so committed to textualism that it restricts contributory liability in copyright law to the two avenues (inducement and “tailoring”) that are codified in patent law, a different statute.
(It is worth noting that Justice Ginsburg’s concurring opinion in Grokster nowhere mentions the word “tailored.” Here is what she said on page 942: “Liability under our jurisprudence may be predicated on actively encouraging (or inducing) infringement through specific acts … or on distributing a product [that] distributees use to infringe copyrights, if the product is not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” Her opinion does not suggest that those are the only two ways of proving contributory liability. And even that statement was only for three justices (Ginsburg, Rehnquist, and Kennedy), not for the Court.)
After explaining the facts and procedural posture, the majority opinion returned to Justice Thomas’s “textualism” theme:
The Copyright Act does not expressly render anyone liable for infringement committed by another.” Sony, 464 U. S., at 434. Ordinarily, when Congress intends to impose secondary liability, it does so expressly…. Although our precedents have recognized specific forms of secondary copyright liability that predated the Copyright Act, we are loath to expand such liability beyond those precedents. [Slip op. at 6-7]
Why would the Court be “loath to expand such liability,” especially when the Court said in Grokster that Sony “was never meant to foreclose rules of fault-based liability derived from the common law”? 545 U.S. at 934-35. Again, the only answer I can find is textualism: the Court thinks Congress should write the rules for secondary liability (even though Congress in 1976 believed that courts should continue the common-law tradition in many respects). In the Court’s view, Congress did what it was supposed to do in codifying secondary liability in patent law; so the majority does not want to go beyond those boundaries in the related field of copyright law, notwithstanding the “rules of fault-based liability derived from the common law.”
That the majority is limiting contributory infringement to those two means is made abundantly clear in the next paragraph: “The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement. The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.” [Slip op. at 7, emphasis added] The majority then discusses the two relevant examples from its own case law [Grokster and Sony]:
A provider induces infringement if it actively encourages infringement through specific acts. For example, in Grokster, … [t]he companies promoted and marketed their software as a tool to infringe copyrights … [and] [t]he “principal object” of their business models “was use of their software to download copyrighted works.” …
A service is tailored to infringement if it is “not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” …
These two forms of contributory infringement track patent law…. [Slip op. at 7-8]
There is no analysis here: no discussion of Congressional intent, legislative history, or public policy. There is no discussion of the two decades of lower court cases that had addressed the issue. No discussion of the “(specific) knowledge plus material contribution” standard. The majority opinion is nothing more than assertion: here are two types of contributory infringement that the Court has previously recognized, and we are not going to go beyond them.
In the next paragraph, the Court rejects a “straw man” argument, saying:
This Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe. In Kalem Co., the Court explained that “mere indifferent supposition or knowledge on the part of the seller” that the buyer will use the product unlawfully is “not enough” to make the seller liable for the buyer’s conduct. 222 U. S., at 62…. And, in Grokster, the Court confirmed that “a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement.” 545 U.S. at 939, n.12. [Slip op. at 8-9]
Here, the majority fails to grapple with the difference between a product and a service. In Sony, the manufacturer sold VCRs to customers and had no further involvement with them. It had constructive knowledge that some of them would use the product to infringe, but it had no way of knowing which ones. But a service provider has an ongoing relationship with its users. The service provider may lack specific knowledge at the outset; the question is whether it needs to terminate the ongoing relationship once it learns that a specific user intends to infringe.
The Court then restated its conclusion:
Thus, Cox is not contributorily liable for the infringement of Sony’s copyrights. Cox provided Internet service to its subscribers, but it did not intend for that service to be used to commit copyright infringement. Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents.
… As for inducement, … Sony provided no “evidence of express promotion, marketing, and intent to promote” infringement … [and] Cox repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts. As for providing a service tailored to infringement, … Cox simply provided Internet access, which is used for many purposes other than copyright infringement. [Slip op. at 9]
The Court disapproved the Fourth Circuit’s holding that “supplying a product with knowledge that the recipient will use it to infringe copyrights is . . . sufficient for contributory infringement.” That standard was based on the Second Circuit’s Gershwin opinion, which was cited in Grokster with apparent approval; and it had been adopted by all of the Courts of Appeals to consider the issue. The Supreme Court did not grapple with any of that case law; instead, it simply said that the Fourth Circuit’s standard “went beyond the two forms of liability recognized in Grokster and Sony.” [Slip op. at 9-10]
Finally, the Court brusquely dismissed Sony’s argument that “Congress must have enacted the DMCA on the presumption that Internet service providers could be held liable in cases such as these” [Slip op. at 10], saying: “The DMCA merely creates new defenses from liability for such providers. And, the DMCA made clear that failure to comply with the safe-harbor rules ‘shall not bear adversely upon . . . a defense by the service provider that the service provider’s conduct is not infringing.’ §512(l).”
The Court could have noted (but didn’t) that, unlike other service providers, internet access providers like Cox are not subject to the notice-and-takedown provisions of section 512(c). Sony’s attempt to make them liable by sending Cox tens of thousands of notices of claimed infringement therefore contradicts the implicit assumption that Congress made that hosting, caching, or linking to infringing material should be treated differently from internet “backbone” providers and internet access providers, like Cox.
The Concurring Opinion
Justice Sotomayor, joined by Justice Jackson, concurred in the result only. Her concurring opinion criticized the majority for abandoning other common-law species of contributory liability:
The majority holds that Cox is not liable solely because its conduct does not fit within the two theories of secondary liability previously applied by this Court. In so doing, the majority, without any meaningful explanation, unnecessarily limits secondary liability even though this Court’s precedents have left open the possibility that other common-law theories of such liability, like aiding and abetting, could apply in the copyright context.
I nonetheless agree with the majority that Cox cannot be held liable here for a different reason. Plaintiffs cannot prove that Cox had the requisite intent to aid copyright infringement for Cox to be liable on a common-law aiding-and-abetting theory.
[Conc. op. at 1-2]
The concurring justices agreed that “this Court’s cases have held that contributory liability for copyright infringement may attach in at least two circumstances”: “distributing or providing a product or service that is incapable of “commercially significant noninfringing uses” [Conc. op. at 2] and inducement [Conc. op. at 3]. They also agreed with the majority that “neither of the[se] two prior theories of secondary liability … covers Cox’s conduct” [id.], and that “[t]he provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement.” [Id.] They disagreed, however, with the majority’s assertion that “[t]he intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.” [Conc. op. at 3-4 (emphasis added)] “The inflexible limit the majority imposes is nowhere to be found in either Sony or Grokster.” [Id. at 4]
Instead, “[p]roperly understood, Sony and Grokster preserved other forms of secondary liability derived from the common law.” [Conc. op. at 4] In Sony, the Court stated that “‘[t]he absence of such express language in the copyright statute does not preclude the imposition of’ secondary liability, … because both forms of liability are ‘imposed in virtually all areas of the law.’ 464 U. S., at 434-35.” [Id.] And in Grokster, the Court explained “that Sony neither ‘displace[d] other theories of secondary liability’ nor ‘foreclose[d] rules of fault-based liability derived from the common law.’ 545 U. S., at 934-35.” [Id.]
After reviewing 17 U.S.C. § 512, the concurring opinion then complained that the majority opinion undermines the “safe harbors”: “The majority’s new rule completely upends that balance and consigns the safe harbor provision to obsolescence…. After today, … ISPs no longer face any realistic probability of secondary liability for copyright infringement, regardless of whether they take steps to address infringement on their networks and regardless of what they know about their users’ activity.” [Conc. op. at 6]
The concurring opinion sensibly concludes that the majority should have applied “the common-law doctrine of aiding and abetting.” It cautioned, however, that “aiding-and-abetting liability requires proof that the defendant aided another with the intent of helping that other person succeed in committing wrongful conduct.” [Conc. op. at 7] It cited Twitter, Inc. v. Taamneh, 598 U. S. 471 (2023), for the proposition that “the defendant has to take some ‘affirmative act’ ‘with the intent of facilitating the offense’s commission.’” [Conc. op. at 8] It also explained that:
The common law … recognizes that intent can sometimes be inferred from what the defendant knew when he acted. The Second Restatement of Torts explains that this kind of knowledge-based intent can be found where “the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead. [Conc. op. at 8]
Applying this standard, the concurring opinion found insufficient evidence of any specific intent to infringe:
Cox is merely supplying internet service to its customers. Nothing about that conduct is inherently culpable: Most internet traffic is lawful, and supplying an internet connection is just as consistent with lawful purposes as it is with unlawful purposes….
Nor have plaintiffs shown that Cox intended to aid specific instances of infringement. That is because, based on plaintiffs’ evidence, Cox does not actually know that specific users will commit infringement using Cox’s network….
… Take, for example, a connection sold to a single-family home. Cox, after receiving three notices of copyright violations, would know only that that home’s connection is substantially certain to be used again in the future to commit infringement. Yet Cox would have no knowledge … who within the household committed infringement. Nor … have plaintiffs shown any way for Cox to know if the infringer was a neighbor who might have the Wi-Fi password. Without that knowledge, it is not reasonable to infer that Cox intended to aid infringement committed by another person just because it provided an internet connection to some unknown infringer. [Conc. op. at 10-11]
“Cox [also] provides internet service to regional ISPs who in turn supply internet service to thousands of users.” [Conc. op. at 11-12] There is no way for either Cox or the regional ISPs to know which of the thousands of users are “substantially certain” to infringe based on the notices. “The same is true for connections Cox provides to university housing, hospitals, military bases, and other places that are likely to have many different users.” [Conc. op. at 12]
What About Trademark Law?
In Cox, the Supreme Court expressly disapproved the Fourth Circuit’s holding that “supplying a product with knowledge that the recipient will use it to infringe copyrights is . . . sufficient for contributory infringement.” It failed to note, however, that the standard it disapproved is virtually identical to the Supreme Court’s own standard for contributory infringement in trademark law.
In Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982), the Supreme Court expressed the standard for contributory infringement as follows:
[I]f a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit.
456 U.S. at 854. Two features of this statement are notable. First, unlike in patent law, it is not limited to defendants who have actual knowledge of the infringement (or willful blindness), but it includes those who have “reason to know” of infringement. That sounds like a negligence standard, rather than an intent standard. Second, except for the “reason to know” language, it is virtually identical to the standard that the Supreme Court just disapproved in Cox. This raises the question whether the Cox case will be used to call into question the trademark standard.
On the one hand, the Court has repeatedly referred to the “historic kinship” that patent law shares with copyright law. Both are authorized in the same Constitutional clause (Art. I, §8, cl. 8), and both are intended to provide creators with a financial incentive to create and disseminate new inventions (patent) and new creative works (copyright). By contrast, federal trademark law rests on a very different Constitutional foundation (the Interstate Commerce Clause, Art. I, §8, cl. 3) and serves different purposes (preventing consumer confusion and allowing a producer to reap the benefit of a reputation for quality). Indeed, in The Trademark Cases, 100 U.S. 82 (1879), the Supreme Court held that trademarks were neither “inventions” nor “writings,” so that federal trademark law could not be authorized by the Patent and Trademark Clause. A lower court could certainly distinguish Inwood on those grounds. On the other hand, there seems to be no good reason why general principles of secondary liability that are applicable to statutory torts generally should not be applied in the same manner to both copyrights and trademarks.
It remains to be seen whether Cox will upset the Inwood standard for contributory liability that has been widely cited and relied upon in trademark law. I predict that defendants in trademark cases will challenge the Inwood standard, based on Cox; and it seems likely that a circuit split will develop on the question of whether Cox changes the law of contributory infringement in trademark law or not. If so, the Supreme Court may have to take another case to resolve this conundrum of its own making.
Other Implications
The Cox v. Sony decision is a huge victory for internet access providers, who otherwise faced the possibility of either terminating lots of users or facing large statutory damage awards. It is also a victory for consumers, who are far less likely to be threatened with loss of internet access, which is a practical necessity in today’s society. It also reinforces the previous 2-1 decision of the Ninth Circuit that credit-card companies are not contributorily or vicariously liable for providing payment-processing services to allegedly infringing websites. See Perfect 10, Inc. v. VISA Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007).
In my opinion, however, the Court should have taken the approach of the two concurring justices. That approach would have preserved existing case law and the common-law approach to judicial rule-making, while still making it clear that losing internet access is a disproportionate penalty for alleged acts of copyright infringement.
One of the few benefits of the Cox decision is that it states a clear rule that ought to be relatively easy for lower courts to apply. As Prof. Rub explained, the real question is whether lower courts will follow Cox literally, or whether they will find ways to distinguish its holding from other common situations. When you squeeze a balloon, it tends to bulge out in other directions. It is easy to predict that copyright owners will now focus on “inducement,” trying to argue that specific knowledge of infringing material leads to an inference of intent. If one takes Cox literally, even knowledge of specific infringing files is not enough to constitute “inducement” without some affirmative steps to promote infringement; but one court has already distinguished Cox on similar (albeit tenuous) legal grounds.
It is also easy to predict that copyright owners will now focus on “vicarious” liability, which formally remains untouched by Cox. It is already the case that vicarious liability in copyright law has been stretched far beyond its origins in agency law: there is no requirement that there be a principal-agent relationship, only that one party have the “right and ability to control” (or “supervise”) the other party. Most courts have held that is satisfied by a showing that the party has the ability to terminate access. Cox would likely have been held vicariously liable if the plaintiff could have shown that it received a financial benefit from infringement. Will advertiser-supported services fall into this category? It seems likely that some lower courts will say “yes.” I think an honest reading of Cox should lead to the conclusion that imposing vicarious liability on internet access providers should be equally problematic; but because the Court expressly did not address vicarious liability, copyright holders will surely try to use it.
Consequently, I think “hosting” providers will still want to follow the “notice-and-takedown” procedures in 17 U.S.C. § 512. Unlike access providers, hosting providers face the possibility of “direct” liability under the “server” test that the Ninth Circuit uses for “direct” liability. Unlike contributory infringement, “direct” liability and vicarious liability do not require knowledge or intent, so the absence of an intent to infringe will not save a “hosting” provider. Compliance with the § 512(c) safe harbor, however, will keep the provider from being held liable for direct and vicarious liability as well as for contributory infringement. That gives such providers a strong incentive to maintain their “notice-and-takedown” procedures. It also helps with appearances, because at least it looks like the defendant is trying to do something to discourage blatant infringement.
The hard test will come when a hosting provider doesn’t qualify for the safe harbor: will courts let them off the hook under Cox, or will they find ways to work around the Cox opinion, as Prof. Guy Rub recently argued in this space? Only time will tell.
Conclusion
Cox v. Sony is undoubtedly a landmark opinion on contributory infringement that will now appear in all copyright and IP casebooks. It seemingly limits contributory infringement to just two theories: inducement (from Grokster) and “tailoring” (from Sony). It seemingly rejects the “knowledge and material contribution” standard that has been used by the lower courts for over 50 years, and that the Supreme Court itself has used in trademark law. Whether it ultimately has that effect remains to be seen; but it certainly raises multiple avenues for argument that are likely to occupy the lower courts for years to come.
Blog Coverage of Cox v. Sony
The Cox Shock: A Tectonic Shift or Just a Tremor? (Guest Blog Post)
Will Lower Courts Find Ways Around Cox v. Sony? You Betcha