Can an Internet service provider be held liable for copyright infringement by its subscribers? In Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ____ (2026), the Supreme Court narrowed the scope of contributory liability, holding that a service provider may be found contributorily liable for a user’s copyright infringement “only if it intended that the provided service be used for infringement,” which requires a copyright owner to show either that the party [1] “affirmatively induc[ed] the infringement” or [2] “sold a service tailored to infringement.” Slip Op. at 2.
Cox Communications is an Internet service provider (“ISP”) with millions of subscribers. Each subscriber account has a unique Internet Protocol (“IP”) address, which may be shared by multiple individual users. If someone illegally downloads a copyrighted work, an ISP can identify the IP address used, but not which of those individuals downloaded the work. Moreover, ISPs cannot directly control how their subscribers use their services.
Sony and the other plaintiffs are major music copyright owners. To prevent their copyrighted works from being illegally downloaded and shared online, they employ services that detect when those works are illegally uploaded or downloaded. These services identify the IP address associated with a given infringement, and report those infringing IP addresses to ISPs such as Cox.
Cox implemented a system to issue warnings to subscribers whose accounts were reported for allegedly infringing activity and to suspend or even terminate access to repeat offenders. During a two-year period, Cox received at least 163,148 notices of infringement and terminated only 32 subscribers for infringement.
Plaintiffs sued Cox, asserting that it was contributorily and vicariously liable for its subscribers’ infringement. At the District Court, the jury found in Sony’s favor on both theories, found that Cox’s infringement was willful, and awarded $1 billion in statutory damages. In turn, the Fourth Circuit reversed as to vicarious liability, but affirmed as to contributory liability, reasoning that Cox continued to provide Internet service to known infringers. The Supreme Court granted certiorari only as to contributory liability.
In the opinion of the Court, Justice Thomas explained that while the U.S. Copyright Act does not expressly address secondary liability, the Court’s “precedents have recognized specific forms of secondary copyright liability that predated the Copyright Act.” Slip op. at 6-7. Within the narrow bounds of those precedents, he asserted that “mere knowledge that a service will be used to infringe is insufficient to establish the requisite intent to infringe.” Id. at 7.
Rather, he stated that a service provider “is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement.” Id. This requires that the service provider either [1] “induce[] the infringement” by “actively encourag[ing] infringement through specific acts,” or [2] provide a service “tailored to that infringement” that is “not capable of substantial or commercially significant noninfringing uses.” Id. (quotations omitted).
Applying these principles, the Court found that Cox was not contributorily liable for the infringement of its subscribers. First, the Court held that Cox did not induce or encourage its subscribers to infringe merely by providing Internet services. There was no evidence of marketing or promotion that encouraged infringement, and, indeed, Cox discouraged infringement by sending warnings, suspending services, and terminating accounts. Second, the Court found that Cox did not provide a service tailored to infringement, since its Internet services were capable of substantial or commercially significant noninfringing uses. Again, Cox’s knowledge that some end users were using the service to infringe, and its failure to prevent that infringement, were not sufficient to create contributory liability.
Finally, the Court addressed Sony’s argument that “if Internet service providers are not liable for providing Internet service to known infringers,” then the safe harbor provisions set forth in the Digital Millennium Copyright Act (“DMCA”), which provide ISPs that follow those provisions with protection from liability, would have no effect or rationale. The Court did not see the interaction with the DMCA safe harbors as relevant to determining the scope of contributory infringement liability, since the DMCA “merely creates new defenses from liability for such providers.” Id. at 10.
Justice Sotomayor authored a concurring opinion, which Justice Jackson joined. She agreed with the majority that Cox should not be considered secondarily liable for its user’s copyright infringement, as Plaintiffs were unable to prove that Cox had the requisite intent to aid that infringement.
However, she warned that the majority’s new standard, which limited contributory infringement to only two theories, adopted an unduly narrow definition of secondary liability and ignored the Court’s longstanding precedents. She further warned that, under the majority’s approach, “ISPs no longer face any realistic possibility 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.” Id. at 6.
This decision is likely to narrow the risk that internet service providers and large technology companies will be found contributorily liable for the copyright infringement of their users. This holding may focus additional attention on the scope of direct liability for service providers, which is not directly affected by this decision.