Cox Communications, Inc. v. Sony Music Entertainment
607 U.S. ___ (2026) | No. 24-171 | Decided March 25, 2026
I. The Billion-Dollar Question
On March 25, 2026, the Supreme Court of the United States handed down its decision in Cox Communications, Inc. v. Sony Music Entertainment, reversing a billion-dollar jury verdict and, in the process, redrawing the boundaries of secondary copyright liability in American law. The question at the heart of the case was deceptively simple: can an internet service provider be held liable as a copyright infringer for continuing to provide internet access to subscribers it knows are using that access to pirate music?
The answer, in a 7–2 opinion authored by Justice Thomas, was no. Not because the Court doubted that piracy was occurring — over a two-year period, Sony’s monitoring agent sent Cox more than 163,000 notices identifying IP addresses associated with infringement. Not because the Court was indifferent to copyright holders’ plight. But because, under the Court’s precedents, knowledge that a service will be used for infringement has never been enough to make the service provider an infringer. Something more is required: the provider must have intended its service to be used for infringement. And the Court held that this intent can be established in only two ways.
This article explains the decision, its doctrinal architecture, and its practical consequences for both copyright practitioners and content creators.
II. How We Got Here: The Road to the Supreme Court
To understand why this case matters, one must first understand the legal theory that the Court dismantled.
Copyright law recognizes two forms of secondary liability — liability imposed not on the person who actually copies or distributes a copyrighted work, but on someone who facilitates that infringement. The first is vicarious liability, which attaches when a party profits from infringement it has the right and ability to supervise. The second is contributory liability, which is the subject of this case. For decades, the prevailing formulation of contributory liability in the lower courts derived from the Second Circuit’s 1971 decision in Gershwin Publishing Corp. v. Columbia Artists Management, Inc.: one who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another is a contributory infringer.
Under this formulation, Sony’s case against Cox was straightforward. Cox knew — from 163,148 notices — that specific IP addresses on its network were being used for infringement. Cox continued to provide internet service to those accounts. That continued provision of service, Sony argued, was a material contribution to the infringement. The Fourth Circuit agreed, holding that supplying a product with knowledge that the recipient will use it to infringe copyrights is sufficient for contributory liability.
The facts, however, were not quite so clean. Cox had implemented a graduated-response system: warnings after the second notice, service suspensions after additional notices, and termination eligibility after thirteen notices. Cox maintained that this system ended 98% of identified infringement. But the numbers told a different story to Sony’s lawyers: during the claim period, Cox terminated only 32 subscribers for infringement while terminating hundreds of thousands for nonpayment. Internal Cox communications revealed employees who viewed the infringement notices as a nuisance and were reluctant to sacrifice subscriber revenue by acting on them.
The jury sided with Sony, found the infringement willful, and awarded $1 billion in statutory damages. The Fourth Circuit affirmed on contributory liability, reversed on vicarious liability, and vacated the damages for recalculation. The Supreme Court took the case to address the contributory liability question alone.
III. The Court’s Holding: Two Paths, and Only Two
Justice Thomas’s majority opinion begins from a premise of restraint. The Copyright Act does not expressly create secondary liability; the statute says that anyone who violates the copyright owner’s exclusive rights is an infringer, and Cox did not itself copy or distribute Sony’s music. Secondary liability in copyright is a judicial creation, imported from common-law principles, and the Court expressed reluctance to expand it beyond the forms its own precedents have recognized.
From this starting point, the majority distilled contributory liability into a strict two-prong framework. A service provider is contributorily liable for a user’s infringement only if it intended its service to be used for infringement. And that intent can be established in only two ways:
First, inducement. A provider induces infringement when it actively encourages infringement through specific acts — promoting, marketing, or otherwise affirmatively pushing users toward infringing uses of the service. The paradigmatic case is MGM Studios Inc. v. Grokster, Ltd. (2005), where peer-to-peer file-sharing companies marketed their software as a tool for downloading copyrighted works. The principal object of their business was infringement.
Second, tailoring. A service is “tailored” to infringement if it is not capable of substantial or commercially significant noninfringing uses. This is the standard from Sony Corp. of America v. Universal City Studios, Inc. (1984) — the Betamax case — where the Court held that the sale of a video tape recorder to the general public did not constitute contributory infringement because the device was capable of substantial noninfringing uses, such as recording television programs for later personal viewing.
Having stated the framework, the majority applied it to Cox and found both prongs easily resolved. Cox did not induce infringement: it never promoted, marketed, or encouraged piracy; it actively discouraged it through warnings, suspensions, and terminations. Cox’s service was not tailored to infringement: internet access is used for countless legitimate purposes — email, commerce, education, communication — and no one could seriously argue that Cox’s internet service was “good for nothing else” but infringement.
The majority then addressed the Fourth Circuit’s standard directly and rejected it. The Fourth Circuit had held that knowledge plus continued provision of service was sufficient. The Supreme Court held that this went beyond the two recognized forms of contributory liability and conflicted with the Court’s repeated admonition — in Kalem Co. v. Harper Brothers (1911), Sony, and Grokster — that mere knowledge that a service will be used for infringement is insufficient. A failure to take affirmative steps to prevent infringement does not create liability.
IV. The DMCA Problem: A Safe Harbor Without a Storm
Sony’s most formidable argument was structural, and it concerned the Digital Millennium Copyright Act. In 1998, Congress created a safe harbor under 17 U.S.C. § 512 that shields ISPs from secondary copyright liability — but only if they adopt and reasonably implement a policy for terminating repeat infringers. Sony’s argument was elegant: if ISPs face no underlying liability for providing service to known infringers, the safe harbor is superfluous. Congress would not have conditioned immunity on a repeat-infringer policy unless there was some liability to be immune from.
The majority disposed of this argument in a single paragraph, invoking § 512(l), which provides that failure to qualify for the safe harbor “shall not bear adversely upon” a service provider’s defense that its conduct is not infringing. The DMCA, the Court reasoned, does not impose liability; it merely creates defenses. And the statute’s own text forecloses drawing a negative inference from a provider’s failure to qualify for those defenses.
This is, by any measure, the most consequential practical implication of the decision. The DMCA’s repeat-infringer termination requirement was the primary legal lever that copyright holders used to compel ISP cooperation. After Cox v. Sony, that lever has no force. ISPs may continue to maintain repeat-infringer policies for business reasons, but they have no legal obligation to do so, and their failure to act on infringement notices carries no legal consequence under a contributory liability theory. Cox’s own attorney conceded at oral argument that under the Court’s rule, the safe harbor provision would not “do anything at all” going forward.
V. The Road Not Taken: Justice Sotomayor’s Concurrence
Justice Sotomayor, joined by Justice Jackson, concurred in the judgment but wrote separately to challenge virtually every aspect of the majority’s reasoning. Her concurrence is significant not only for what it says about this case, but for the roadmap it provides to future litigants.
The core of her disagreement is doctrinal. She argues that Sony and Grokster — the very cases the majority relies upon — expressly left open the possibility that other common-law theories of secondary liability could apply in the copyright context. Grokster stated in plain terms that Sony neither displaced other theories of secondary liability nor foreclosed rules of fault-based liability derived from the common law. The majority, Sotomayor charges, does precisely what Grokster said courts should not do: it treats two previously applied theories as the only theories that can ever apply, without engaging with the precedent that held the door open.
Having identified this error, Sotomayor turns to the theory she would apply: common-law aiding and abetting. Drawing on two recent decisions — Twitter, Inc. v. Taamneh (2023), involving social media platforms and ISIS terrorism, and Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos (2025), involving gun manufacturers and cartel violence — the concurrence identifies the core requirement of aiding-and-abetting liability: the defendant must consciously and culpably participate in a wrongful act so as to help make it succeed, with the intent of facilitating the offense.
Importantly, Sotomayor acknowledges that intent can sometimes be inferred from knowledge. The Restatement (Second) of Torts provides that when an actor knows the consequences of its actions are “certain, or substantially certain,” the law treats that knowledge as intent. But this inference requires highly specific knowledge — and that is where Cox’s case falls apart even under the concurrence’s more flexible framework.
The concurrence identifies three fatal gaps in Sony’s evidence. First, infringement notices identified only IP addresses, not individual users; Cox could not know who within a household, dormitory, or coffee shop committed the infringement. Second, Cox provided service to regional ISPs that in turn served thousands of downstream users — a chain of intermediaries analogous to the middlemen distributors in Smith & Wesson that attenuated any inference of intent. Third, Sony’s allegations were generalized rather than transaction-specific, and under Smith & Wesson, such generalized theories require proof of “pervasive, systemic, and culpable assistance” — a bar that mere indifference to infringement does not clear.
The practical significance of the concurrence is that it articulates a path by which, in a future case with different facts, an ISP could face secondary liability. If a copyright holder could demonstrate knowledge of specific infringers (not merely specific IP addresses), a direct relationship between the provider and the infringer (without intermediary attenuation), and conduct exceeding indifference — something approaching deliberate facilitation — aiding-and-abetting liability might attach. The majority’s framework forecloses this path; the concurrence keeps it open.
VI. What This Means in Practice
For copyright holders and content creators, the decision substantially narrows the tools available to those seeking to enlist intermediaries in enforcement. The strategy of sending mass infringement notices to ISPs and threatening contributory liability if they fail to terminate repeat infringers is no longer legally viable. Copyright holders’ remaining options for combating online piracy through intermediaries are limited to inducement claims (which require evidence of active encouragement of infringement), the DMCA’s notice-and-takedown regime for hosted content (which applies to hosting providers, not conduit ISPs), vicarious liability (which requires both supervisory control and a direct financial benefit from the infringement — a theory the Fourth Circuit already rejected on these facts), and direct suits against individual infringers (which remain available but are costly and impractical at scale).
For individual content creators — musicians, filmmakers, authors, and others — the practical effect is that the burden of enforcement shifts further onto their shoulders. The dream of enlisting ISPs as copyright police is over, at least absent new legislation. Creators will need to rely more heavily on platform-level enforcement, technological protection measures, and direct licensing arrangements.
For internet service providers, the decision eliminates the legal risk that animated compliance with repeat-infringer policies. This does not mean ISPs will immediately abandon those policies — contractual obligations, customer expectations, and relationships with content industries provide independent incentives — but the legal compulsion is gone.
For platforms and other service providers, the implications extend well beyond traditional ISPs. Cloud storage providers, VPN services, content delivery networks, and any other provider of general-purpose infrastructure face the same analysis. Under the majority’s framework, providing a general-purpose service with knowledge that some users employ it for infringement does not create contributory liability.
For litigators with pending cases, practitioners with active contributory liability claims premised on a knowledge-plus-material-contribution theory should reassess their positions immediately. The Court’s holding is categorical, not fact-dependent: it does not merely hold that the evidence against Cox was insufficient, but that the underlying legal theory is invalid. Any pending case in which the plaintiff’s contributory liability claim rests on the defendant’s knowledge of infringement and continued provision of a general-purpose service is now foreclosed as a matter of law. Defendants in such cases will seek summary judgment, and courts will have little room to deny those motions.
Conversely, plaintiffs whose claims rest on genuine inducement — defendants who marketed, promoted, or actively encouraged infringement — are unaffected. The Grokster inducement theory remains fully intact. And claims against services that are genuinely tailored to infringement, lacking substantial noninfringing uses, likewise survive.
VII. The Patent-Law Parallel
One aspect of the decision that deserves attention from practitioners in both copyright and patent law is the majority’s explicit alignment of contributory copyright liability with patent law’s statutory framework. The opinion draws a direct parallel between its two-prong test and 35 U.S.C. §§ 271(b) and (c): inducement liability in § 271(b), which requires affirmative intent that a product be used to infringe, and contributory infringement in § 271(c), which applies to products especially made or adapted for infringement.
This parallelism is doctrinally tidy but carries an irony that practitioners should note. Patent law’s contributory infringement framework is a statutory creation with explicit textual boundaries. Copyright law’s contributory liability, by contrast, is entirely judge-made. By importing the patent framework wholesale, the majority has arguably constrained copyright’s common-law secondary liability more rigidly than Congress constrained patent law’s statutory secondary liability — imposing bright-line limits on a doctrine that was, by its nature, supposed to evolve with the common law.
VIII. What the Court Left Unanswered
Several significant questions remain open after this decision.
Where does “tailoring” begin? The tailoring prong was easy to apply here — internet access is plainly a general-purpose service. But the analysis becomes harder at the margins. Consider a “debrid” service that accelerates downloads from cyberlockers widely known for hosting pirated content, or a modified set-top box preloaded with add-ons that stream pirated media. These services have some legitimate uses, but their user base is overwhelmingly composed of infringers. The Court did not address where the line between “substantial noninfringing uses” and tailored-to-infringement falls in marginal cases, and this question will generate substantial litigation.
Is the two-prong framework truly exhaustive? The majority asserts that inducement and tailoring are the only two paths to contributory liability. The concurrence insists that Grokster expressly preserved other common-law theories. The majority does not engage with this argument, and its silence creates an ambiguity that lower courts will need to resolve.
Will Congress respond? The decision creates a strong incentive for copyright holders to seek legislative relief. The most likely proposals would either create express statutory liability for ISPs that fail to implement adequate repeat-infringer policies or strengthen the DMCA’s compliance requirements. Any such legislation, however, would face difficult questions about due process and the First Amendment. The legislative path is available but far from simple.
IX. Conclusion
Cox Communications v. Sony Music Entertainment is the most important secondary copyright liability decision in two decades. It establishes that contributory copyright liability requires either inducement or tailoring; that knowledge of infringement, however extensive and specific, is categorically insufficient; and that a service provider’s failure to terminate or restrict service to known infringers creates no liability under copyright law.
The decision offers clarity where ambiguity had prevailed. For twenty years after Grokster, lower courts debated whether and how knowledge-based contributory liability could attach to general-purpose service providers. That debate is over. The bright line the Court has drawn protects ISPs, platforms, and technology companies from liability premised solely on their users’ misconduct. It also, as Justice Sotomayor warns, dismantles the statutory incentive structure that Congress created to encourage ISP cooperation in copyright enforcement.
Whether the decision proves to be a wise act of judicial restraint or an act of judicial overreach that leaves copyright holders without meaningful recourse against intermediaries will depend in part on what Congress does next. In the meantime, the law is clear: providing a general-purpose service with knowledge that some users will abuse it is not copyright infringement.
But the story does not end with the Court’s opinion. Justice Sotomayor’s concurrence ensures that the intellectual debate will continue, and her invocation of aiding-and-abetting principles from Twitter v. Taamneh and Smith & Wesson v. Mexico plants a doctrinal seed that future plaintiffs will attempt to cultivate. The concurrence’s framework — requiring specific knowledge of individual infringers, a direct relationship with the wrongdoer, and conduct exceeding mere indifference — describes a case that could arise on different facts. Whether any lower court takes up that invitation, and whether any future Supreme Court majority endorses it, remains to be seen.
The billion-dollar verdict is gone. The bright line is drawn. The rest is up to Congress — and to whatever creative theories the next generation of copyright litigators can devise within the boundaries the Court has now firmly established.
I’m Leonard French, your favorite copyright attorney. I look forward to reading your thoughts in the comments below.
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