SCOTUS Narrows Secondary Liability Under Copyright

On March 25, 2026, the U.S. Supreme Court held that internet service provider Cox Communications was not contributorily liable for copyright infringement committed by its users, even where it had knowledge that certain users were engaging in infringement and continued to provide service to them. In so doing, the Court held that contributory liability requires proof that the defendant either actively encouraged infringement or designed its service for an infringing purpose. However, Justice Sotomayor noted in a concurrence that this ruling could call into question the continued practical significance of the Digital Millennium Copyright Act (DMCA) safe harbor.  

Cox is a major internet service provider with approximately six million customers. Some of those subscribers used Cox’s service to repeatedly infringe copyrighted works owned by Sony and other music companies. Sony submitted numerous infringement notices identifying IP addresses associated with Cox subscribers. Cox implemented a graduated response system, including warnings and temporary suspensions but terminated relatively few accounts.

At trial, Sony alleged both vicarious and contributory liability. As to vicarious liability, Sony argued that Cox profited directly from the infringement and had the right and ability to supervise its users, the infringers. As to contributory liability, Sony argued that Cox knowingly continued to provide service to subscribers whose accounts were associated with repeated infringement. A jury found for Sony on both theories. 

On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed the finding of contributory liability but reversed as to vicarious liability, holding that Cox did not receive a “direct financial benefit from its subscribers’ infringement.” The Supreme Court granted certiorari only on the issue of contributory liability.

Noting that the Copyright Act does not have any statutory provision that allows for anyone other than the infringer to be held liable for the infringement, the Court noted that it was “loath” to expand secondary liability beyond its precedents, holding:

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. . . 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.  

The Court held that because Cox did not intend for its internet service to be used for copyright infringement, it could not be held contributorily liable. “Holding Cox liable for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents.” The Court made clear that “contributory liability cannot rest only on a provider’s knowledge of infringement and insufficient action to prevent it.”

Addressing Sony’s argument that this ruling flies in the face of the DMCA, the Court noted that the DMCA does not impose liability — it only creates new defenses from such liability for providers. The Court also noted that the DMCA makes clear that failure to comply with the safe-harbor rules does not imply liability.  

Notably, the Court did not limit its ruling to internet service providers.  

Justice Sotomayor concurred, with Justice Jackson joining, stating that although she agrees that Cox should not be held liable, that is because the plaintiffs could not prove that Cox had the requisite intent to aid infringement. She cautioned that the majority opinion unnecessarily limited 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 contexts.” Justice Sotomayor wanted to leave the door open for other ways for “intent” to be established for contributory liability. She argued that both Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (the “Betamax” case) and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) allowed for common law theories of secondary liability. She further argued that the common law allows that “intent can sometimes be inferred from what the defendant knew when he acted.” She also expressed concern that the majority’s decision could dismantle the incentives of the DMCA and render the DMCA safe harbor obsolete.