Quick Comments on the SCOTUS Cox v. Sony Ruling

My brief initial comments on the Cox v. Sony decision:

The decision reaches the right outcome. It has been unconscionable that copyright owners keep trying to hold Internet access providers liable for the acts of their subscribers. I hope this decision puts an end to that litigation genre.

Thomas’ opinion potentially makes major changes to venerable common law doctrines. It seemingly overrides the decades-old Gershwin standards for contributory copyright infringement and instead offers two ways for copyright owners to establish contributory copyright infringement: (1) inducement, or (2) the service is “tailored” to infringement. The “tailored to infringement” standard is brand-new; Thomas grabbed it from Ginsburg’s non-dispositive concurrence in the Grokster case. Because “tailored to infringement” has never been the governing standard before, there will be substantial confusion in the lower courts trying to figure out how to apply it.

Thomas’ opinion defines “tailored to infringement” as “not capable of substantial or commercially significant noninfringing uses.” This resurrects the Sony v. Universal standard for contributory infringement from over 40 years ago, which largely got put on hold after the Grokster case 20 years ago. Because it’s not been well-explored since 2006, we’re not sure what this phrase means in the modern Internet age. On balance, the old Sony standard should favor future defendants, but copyright owners will invest a lot of money to try to water it down and undermine it.

I do note the irony that Sony created the defense-favorable legal standard in 1984 that is now being cited against it in 2026. As the Bible verse goes, “You reap what you sow.”

My blog post on the 2024 Fourth Circuit opinion (now overruled).

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UPDATE: See also Hikma Pharmaceuticals Inc. v. Amarin Pharma, Inc., No. 24–889 (U.S. Supreme Ct. June 4, 2026):

Amarin’s second (and more germane) case is Grokster, where we described “[t]he classic instance of inducement” as an “advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations.” But statements designed to stimulate others form a narrower category than statements that could stimulate others. And in Grokster, the defendants’ statements fit into that narrower class: Grokster, a distributor of free file-sharing software, “sent users a newsletter promoting its ability to provide particular, popular copyrighted materials.”…

inducement cannot be based only on “vague” language “combined with speculation about how [others] may act.” That said, Hikma overshoots by urging that active inducement must be “express.” A defendant can achieve active inducement through implicit encouragement, as StreamCast did through the “suggestiv[e]” name of its “OpenNap program.”  But implicit or explicit, the necessary inducement must be “clear” to the relevant audience and “affirmative.”

Implicit and suggestive statements can be inducement…when they are affirmative. Got it. 😵

In a footnote, the court adds: “the key question is whether a defendant actively encouraged infringement through its statements, not merely how others may understand those statements.”