COX COMMUNICATIONS v. SONY MUSIC
Authored by: Jeremy J. Gustrowsky
The Supreme Court handed down a major decision on secondary copyright liability, ruling that an internet service provider cannot be held liable for its subscribers’ copyright infringement simply because it continued providing internet service after learning some subscribers were illegally sharing copyrighted music. The case centered on Cox Communications, one of the nation’s largest ISPs serving roughly six million subscribers, and Sony Music Entertainment along with other major music copyright owners who had secured a billion-dollar jury verdict against Cox.
Sony had enlisted a company called MarkMonitor to monitor the internet for copyright infringement. Over a roughly two-year period, MarkMonitor sent Cox over 163,000 notices identifying subscriber IP addresses associated with illegal music sharing. Sony argued that by continuing to provide internet access to those subscribers, Cox was “contributorily liable” for the infringement. The jury agreed, finding Cox willfully infringed over 10,000 copyrighted works and awarding $1 billion in statutory damages. The Fourth Circuit upheld the contributory liability finding, reasoning that supplying a product with knowledge that the recipient will use it to infringe is sufficient.
The Supreme Court reversed in a 9-0 opinion written by Justice Thomas. The Court explained that contributory copyright liability requires proof that the provider intended its service to be used for infringement, and that intent can only be shown in two ways. First, the provider must have actively encouraged or “induced” the infringement (like advertising a product as a tool for piracy). Second, the provider must have offered a service “tailored” to infringement, meaning the service is not capable of substantial legitimate uses. Neither applied to Cox. Cox never promoted infringement, actually discouraged it through warnings and account suspensions, and its internet service obviously has enormous legitimate uses far beyond piracy.
Justice Sotomayor, joined by Justice Jackson, concurred in the result but criticized the majority for unnecessarily narrowing the scope of secondary liability. She argued the Court should have recognized that common-law aiding-and-abetting principles could apply in copyright cases, as suggested by the Court’s own precedents. However, she agreed Cox could not be held liable because the evidence did not show Cox had the specific intent required for aiding and abetting. Notably, Cox often did not even know *who* among a household, dormitory, or regional ISP’s many users was actually committing infringement, only that someone at a particular IP address had done so.
Sony also argued that the Digital Millennium Copyright Act’s “safe harbor” provision (which shields ISPs from liability if they terminate repeat infringers) would be rendered meaningless under Cox’s position. The Court dismissed this argument, noting the DMCA creates defenses but does not itself impose liability. The statute even states that failing to qualify for the safe harbor cannot be used against a provider who argues its conduct simply isn’t infringing. This decision maintains limits on copyright holders’ ability to pursue ISPs as a proxy for going after individual infringers and provides additional guidance on the role of ISPs in online copyright enforcement.