Last week, the U.S. Supreme Court, in Cox Communication, Inc. v. Sony Music Entertainment (No. 24-171, March 25, 2026), substantially narrowed service providers’ potential secondary liability for their users’ copyright infringements, by clarifying that mere knowledge alone that a service will be used to infringe is insufficient to establish the required intent for secondary liability.
The Copyright Act distinguishes between direct infringement, which is strict liability, and secondary liability, where one is responsible for another’s infringements based upon one’s affirmative acts. Per the Cox majority, there are two categories of secondary liability: vicarious and contributory. Because of the posture of this appeal, the Court addressed only the latter category.
Writing for a unanimous court, Justice Thomas concluded that a service provider is contributorily liable for its users’ infringements only if the provider intends that the service be used for infringement. This intent can be shown only if the provider induced infringement or provided a service tailored to infringement. Since Cox did neither, it was not contributorily liable for the infringement of Sony’s copyrights.
The Copyright Act does not expressly render anyone liable for infringement committed by another. Here, the Court defined secondary liability in a throughline from the Sony Betamax case, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984, and Grokster, MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). The Betamax case held that a product/service is tailored to infringement if it is not capable of substantial or commercially significant noninfringing use. Correspondingly, a provider induces infringement if it actively encourages such infringement through specific acts — in Grokster, the company promoted and marketed software as a tool to infringe copyrights.
Cox didn’t induce subscribers to infringe, Justice Thomas noted, because the provider sent warnings, suspended its services and terminated accounts. And providing Internet access – which is used for many purposes other than infringement – is a substantially noninfringing use. Holding Cox liable merely for failing to terminate Internet service, he continued, would expand secondary copyright liability beyond the Court’s precedents.
SOTOMAYOR CONCURRENCE (JOINED BY JUSTICE JACKSON)
Although she joined in the majority’s conclusion that Cox wasn’t liable for its users’ infringements, Justice Sotomayor disagreed with the majority’s limitation of the secondary liability model to only vicarious and contributory infringement. Properly understood, she wrote, Sony and Grokster preserved other forms of secondary liability derived from the common law, like aiding and abetting. Although here, she explained, Sony couldn’t prove that Cox had the requisite intent to aid its users’ infringements based on aiding and abetting liability. Significantly, Cox didn’t know who was using the IP addresses associated with the infringements.
