- within Media, Telecoms, IT, Entertainment, Transport and Family and Matrimonial topic(s)
- with Senior Company Executives, HR and Inhouse Counsel
On March 25, 2026, the U.S. Supreme Court held, in an opinion written by Justice Thomas, that an internet service provider is contributorily liable for a user's copyright infringement only if it induced the infringement or the provided service is tailored to that infringement.
The decision in Cox Communications, Inc. v. Sony Music Entertainment marks a significant clarification of secondary liability principles under the Copyright Act, with immediate implications for internet service providers, technology platforms, and other intermediaries that offer general‑purpose services capable of both lawful and unlawful use. Although the Court's judgment was unanimous, Justice Sotomayor wrote a separate opinion (joined by Justice Jackson) concurring in the judgment in which she argued that the majority improperly curtailed the scope of secondary copyright liability.
Background
Cox Communications is an internet service provider that serves millions of customers. Some of those customers illegally downloaded copyrighted works. In response, Sony Music Entertainment sued Cox. They alleged that Cox was contributorily liable for copyright infringement because it failed to adequately police its customers' usage and terminate accounts known to infringe. They also alleged vicarious liability, though that theory was not at issue in the Supreme Court.
A federal jury found in favor of Sony, determined that Cox's infringement was willful, and awarded $1 billion in statutory damages. The Fourth Circuit affirmed liability, holding that "supplying a product with knowledge that the recipient will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for contributory infringement."
The Supreme Court's decision
In an opinion written by Justice Thomas and joined by six other Justices, the Supreme Court held that a service provider is contributorily liable for copyright infringement "only if it intended that the provided service be used for infringement"—and 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." Mere knowledge that a product is used by customers for copyright infringement is insufficient.
The Court explained that the Copyright Act does not expressly create secondary liability and that existing precedents recognizing such liability must be applied cautiously. It clarified that those precedents—which it was "loath to expand"—hold that a service provider may be held contributorily liable in only two situations: (1) when it affirmatively induces a user's infringement or (2) when it provides a service tailored to infringement. A provider induces infringement "if it actively encourages infringement through specific acts." A service is tailored to infringement "if it is 'not capable of "substantial" or "commercially significant" noninfringing uses.'" Those two forms of contributary liability were previously addressed in seminal cases involving the Grokster file-sharing service (where the Court held that the jury could find inducement on the ground that Grokster marketed its software as a tool to infringe copyrights) and Sony's own Betamax system (where the Court concluded that the video recorder was capable of non-infringing uses).
Applying that two-theory framework, the Court concluded that Cox was not contributorily liable for its users' copyright infringement. Cox, it held, "did not 'induce' or 'encourage' its subscribers to infringe in any manner. Sony provided no 'evidence of express promotion, marketing, and intent to promote' infringement." In addition, Cox "did not tailor its [internet] service to make copyright infringement easier." Instead, it merely offered general-purpose internet access to customers—a service with many obvious substantial and commercially significant lawful applications. Thus, the Court held, the Fourth Circuit's rule—which affirmed the jury's infringement verdict on the ground that Cox had knowledge that its product was used to infringe copyrights—"went beyond the two forms of liability recognized" in the Grokster and Sony decisions. The Court also rejected Sony's argument that the Digital Millenium Copyright Act's safe harbor provisions warranted liability, explaining those provisions offer grounds to narrow liability—not to expand it.
Justice Sotomayor, joined by Justice Jackson, concurred in the judgment. Justice Sotomayor agreed that neither of the two theories of contributory liability applied by the majority covered Cox's conduct. But she would not have limited secondary liability to those two theories and instead would have allowed copyright plaintiffs to establish contributory liability based on other common-law doctrines, such as aiding and abetting. Justice Sotomayor ultimately concluded that Cox was not liable under such common-law theories either, but in her view, the majority "needlessly curtail[ed]" secondary liability in a manner inconsistent with the Court's precedents. Notably, when she was in private practice, Justice Sotomayor specialized in intellectual property law, representing luxury-goods retailers in their fight against knockoff handbags.
Looking ahead
The Court's decision limits the ways that copyright holders can establish secondary liability for copyright infringement. At the same time, the decision leaves open questions about how intent may be shown in cases involving greater platform control or different business models. Courts will continue to grapple with those issues as technologies evolve. HSF Kramer's Intellectual Property and Technology, Media and Entertainment, and Telecommunications teams are closely tracking these developments. If you have any questions about this development, please feel free to contact your usual HSF Kramer lawyer or any of the individuals listed below.
Read the opinion here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
