The Supreme Court Resets Meaning Of Contributory Liability In Copyright Cases

Not only did the Supreme Court reverse a billion-dollar verdict in Cox Communications, Inc. v. Sony Music Entertainment last week, it also reset the law for secondary copyright liability.

As discussed in our November 2025 IP Address article, the underlying court in the Cox-Sony case oversaw a $1 billion jury verdict against Cox for being vicariously and contributorily liable to Sony after continuing to provide service to its subscribers’ infringement (after receiving infringement notices by Sony for repeat infringers). The Fourth Circuit affirmed on contributory liability against Cox while reversing on vicarious liability; it stated that "supplying a product with knowledge that the recipient will use it to infringe copyright is exactly the sort of culpable conduct sufficient" for contributory liability.  With over a billion dollars still at stake, Cox then moved for writ of certiorari with the Supreme Court. In granting the writ, the high court agreed to essentially decide whether an ISP can be held contributorily liable by simply failing to terminate known infringers, without actively encouraging or promoting the infringement. In other words, was the mere knowledge of another's direct infringement sufficient to establish “willful” contributory liability, thereby enabling enhanced damages under Section 504(c) of the Copyright Act?

In a rare unanimous decision, the Supreme Court held that contributory liability based on knowledge of infringing activity, without more, is insufficient. The Court held that Cox’s conduct - however imperfect or commercially motivated - did not satisfy the narrow forms of contributory liability recognized in prior decisions (such as Sony and Grokster)¹.  As Justice Thomas put it, Cox is not liable for “merely providing a service… with knowledge that it will be used by some to infringe copyrights.”

The opinion serves as a reaffirmation that contributory liability requires intent, not just awareness. The Court emphasized that intent can be shown in only two ways: (1) inducement, meaning active encouragement of infringement, or (2) providing a service “tailored to infringement,” meaning a product incapable of substantial non‑infringing uses. According to the Court, Sony had no evidence of inducement; Sony offered no “express promotion, marketing, and intent to promote” infringement, the kind of evidence that doomed the defendants in Grokster. As for the second category, Cox’s internet service did not fit the description, as the internet could be used for everything from homework to telemedicine.

By holding that continued service to known infringers was enough, the Fourth Circuit effectively created a third path to contributory liability through material contribution, and the Supreme Court refused to recognize this path. The majority stressed that it has “repeatedly made clear” that knowledge alone cannot establish contributory liability. In other words, courts cannot impose liability simply because a provider did not do enough to police its users; this kind of negligence‑based theory is incompatible with the intent‑based structure the Court has built over decades.

Additionally, the Court reasoned that the DMCA creates safe harbors, not new liabilities. Section 512(l) explicitly states that failure to qualify for a safe harbor “shall not bear adversely” on a provider’s argument that its conduct is not infringing. According to the majority, Congress offered ISPs a shield, not a sword to be utilized by plaintiffs to secure broader liability.

Justice Sotomayor’s concurrence, joined by Justice Jackson, is worth noting. While she agreed with the judgment, she criticized the majority for freezing secondary liability into two rigid categories and ignoring the possibility of common‑law aiding‑and‑abetting theories. Moreover, the majority's limitation threatens to upset the balance Congress established in forcing ISPs to take reasonable steps in preventing copyright infringement without imposing the impossible task of responding to every instance of infringement on the internet.

The Court's opinion is in line with other circuit decisions. For example, we recently reported on the Eleventh Circuit's decision in Athos Overseas Limited Corp. v. YouTube, Inc., which highlighted a growing trend of tightening the knowledge standard and narrowing the circumstances under which rightsholders can push platforms outside the safe harbor.

For now, the practical implications are clear. ISPs and other dual‑use service providers emerge with a significantly stronger shield: knowledge of infringement (including repeated, well‑documented knowledge) no longer creates liability absent inducement or choices tailored to facilitate infringement. This new reality may embolden some providers to maintain weaker enforcement programs, while also signaling to habitual infringers that account termination is no longer the inevitable consequence of repeated notices of infringement.

As for rightsholders in the creative and tech industries, the ruling forces a strategic recalibration. With contributory liability now confined to narrow, intent‑based theories, enforcement efforts will need to shift toward direct actions, platform‑specific agreements, and technological safeguards. All of this risks a significant increase in costs associated with protecting copyright works against a deluge of infringing activity.

Footnote

1 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984); Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)

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.