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On March 25, 2026, the Supreme Court of the United States released its decision in Cox Communications, Inc. et al. v. Sony Music Entertainment et al., 607 U.S. ------- S.Ct. ----2026 WL 815823 limiting the circumstances in which Internet service providers (ISPs) can be held liable for copyright infringement committed by their users. The Court reversed a US$1 billion jury verdict against Cox, holding that mere knowledge of user infringement — even repeated infringement — is not enough to establish contributory copyright liability.
Although the case arises under U.S. copyright law, the decision has some potential implications for Canada, where courts, rights holders, and policymakers continue to grapple with the proper role of ISPs in online copyright enforcement.
The Majority Decision
Sony and other music rights holders alleged that Cox Communications was contributorily liable (and vicariously liable) for the copyright infringement of its subscribers because it continued to provide Internet access to subscribers whose IP addresses were repeatedly linked to infringing activity. A jury agreed and awarded US$1 billion in statutory damages. The Fourth Circuit upheld the finding of contributory liability (but not vicarious liability), reasoning that continuing to supply Internet service with knowledge of infringement was sufficient to ground liability.
The Supreme Court of the United States reversed the lower courts’ decisions. Drawing heavily on its earlier decisions in Sony Corp. of America v. Universal City Studios, Inc.1and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.2 the Court held that contributory copyright liability requires intent, which can be established in only two ways:3
- Inducement: actively encouraging or promoting infringement;4 or
- Provision of a service “tailored to infringement”: meaning a service is incapable of substantial non‑infringing uses.5
Cox Communications did neither. It did not promote infringement, in fact, it repeatedly discouraged copyright infringement by sending warnings, suspending service, and terminating accounts.6 Cox Communications’ internet service plainly was capable of substantial, or commercially significant, non-infringing uses.7
The Court emphasized that knowledge alone, even combined with imperfect enforcement efforts, does not amount to the requisite intent.8 The majority of the U.S. Supreme Court rejected the new form of contributory liability developed by the Fourth Circuit in this case - which would have held that supplying a product with knowledge that the recipient will use it to infringe copyright is sufficient for contributory infringement.9 The Fourth Circuit’s approach went beyond the two forms of liability recognized at common law.10
The U.S. Digital Millennium Copyright Act (DMCA) safe harbour provision provides that ISPs cannot be secondarily liable for certain forms of copyright infringement if they implement a policy that provides for the termination of services to repeat offenders. Sony argued that the Court’s approach would render that provision meaningless.
The majority disagreed, explaining that the safe harbour does not create liability where none otherwise exists; it merely provides an additional defence from liability. The DMCA safe harbor protects Internet service providers that terminate repeat infringers “in appropriate circumstances.”11
The Concurring Decision
While the concurring judges agreed that Cox Communications was not contributorily liable, they disagreed that secondary infringement is as narrow as the majority described. In the concurring judges’ view, the common law did not confine contributory liability for copyright infringement to the two circumstances identified by the majority.12
In particular, the concurring judges warned that the majority’s new rule upends the balance reflected in the DMCA and risks consigning the safe harbour provision to obsolescence. They noted that, under this approach, ISPs would face no realistic prospect of secondary liability for copyright infringement, regardless of whether they take steps to address infringement on their networks.13
The concurring judges would have examined whether another common law liability rule could nevertheless apply to hold Cox Communications responsible for copyright infringement committed on its network. In particular, they did not agree that the common law secondary liability theory of aiding and abetting could no longer be used to hold persons liable where they : consciously and culpably participate in a wrongful act so as to help make it succeed. They expressed the opinion, however, that the record did not show that Cox had the requisite intent to be liable for aiding and abetting at common law.
How is the Cox case relevant for Canada?
There are significant similarities and differences between Canadian and United States copyright law when it comes to the liability of one person for the infringements of other persons (secondary liability).
First, as a matter of statutory law, Canadian copyright cases often turn on whether the alleged secondary infringer has “authorized” infringement under Section 3(1) of the Copyright Act. There are many different formulations of the test for authorizing infringement. While they parallel some of the factors that U.S. courts look to in assessing contributory and vicarious liability, the tests are not the same.
Second, as a matter of common law, Canadian courts have also recognized that common law accessorial theories of liability can apply in assessing secondary liability claims. Thus, under Canadian law, persons can be liable on accessorial (secondary) liability grounds if they induce or procure infringement, or act under a common design to infringe. These theories have their initial roots in tort principles and have much in common with the U.S. secondary liability principles, although the formulations of the tests have not evolved in exactly the same ways.
Thus, if this case had arisen in Canada, Sony’s case would have been advanced on both statutory ground (alleged authorizing of infringement) as well as common law (accessorial liability) theories. In both cases the statutory safe harbours would be raised by the ISPs.
Third, the case reinforces the difference between “users” and “accounts”. The majority explain that, while ISPs can identify which Internet account was used to infringe copyright, they cannot identify the user who engaged in the infringement. For example, if someone illegally downloaded music from a coffee shop’s IP address, the ISP could not determine which individual engaged in infringement.14
This is significant, because Canadian courts have likewise declined to order default judgment against account holders merely because their Internet account was used to engage in infringement.15
Footnotes
1. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417.
2. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U. S. 913.
3. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 7.
4. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 7.
5. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 7.
6. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 9.
7. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 9.
8. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 8-9.
9. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 9-10.
10. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 10.
11. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 10.
12. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 3.
13. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 6.
14. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ___ p. 3.
15. See Voltage Holdings, LLC v. Doe #1, 2023 FCA 194
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