No Contributory Liability for Online Service Providers Merely for Providing Services to Infringers

On March 25, 2026, the U.S. Supreme Court held that a provider of an online service cannot be contributorily liable for copyright infringement of another when that provider does not induce the infringement or provide a service to the infringer that is tailored to infringement. Cox Communications, Inc. v. Sony Music Entertainment et al., No 24-171, ___ U.S. ___ (March 25, 2026). Merely providing an online service with knowledge that the user of the service will infringe and failing to take sufficient action to prevent the infringement does not demonstrate the intent necessary to establish contributory infringement. Moreover, failure to comply with the safe harbor practices in the Digital Millennium Copyright Act does not alone create liability for internet service providers who serve infringers.

Sony Music Entertainment and other music companies (collectively, “Sony”) sued Cox Communications, Inc. and its subsidiary (collectively, “Cox”) for contributory and vicarious copyright infringement because Cox continued to provide internet access to people who used Cox’s services to infringe Sony’s copyrights even after receiving notice of that infringement. A jury found in favor of Sony and awarded it $1 billion in statutory damages. The U.S. Court of Appeals for the Fourth Circuit affirmed that decision in part, upholding the finding of contributory liability on the ground that, by continuing to provide services to known infringers, Cox itself willfully infringed Sony’s copyrights. The Fourth Circuit reversed as to vicarious liability, vacated the damages award, and remanded the case for a determination of damages based solely on contributory liability. Both parties petitioned the U.S. Supreme Court for certiorari. The Court granted certiorari on the question of contributory liability, but denied certiorari on the ground of vicarious liability. The Court reversed the Fourth Circuit’s decision on the ground that merely providing a service to the general public that some use to infringe a third party’s copyrights does not make the provider liable for copyright infringement.

The Copyright Act reserves certain exclusive rights to the copyright holder of a work. If someone other than the copyright holder exercises those rights without authorization from the copyright holder, generally, they infringe those copyrights. If a third person induced (encouraged through specific acts) the infringing activity or provided services tailored to facilitate the infringing activity, that third person could be held contributorily liable for the infringement, which means that they would be equally responsible for any harm and resultant damages award as the direct infringer.

The Digital Millennium Copyright Act (the “DMCA”) provides online service providers with a safe harbor defense against an allegation of secondary liability (such as contributory liability) if they implement an infringement policy that (among other things) terminates service to account holders who are repeat infringers. Failure to implement such a policy does not preclude an internet service provider from raising other defenses to allegations of secondary liability for copyright infringement.

Cox provides internet access to millions of subscribers. Each account has a unique internet protocol address (“IP address”), but each account may have many users. While Cox may be able to pinpoint certain activity to a particular IP address, it cannot necessarily pinpoint activity to a particular user associated with an IP address.

Sony owns copyrights in music and has worked hard to try to enforce its rights against infringers in the age of online music sharing. It has diligently sued infringers who upload and share (copy and distribute) copies of musical works without Sony’s authorization. But suing infringers one by one does little to reduce the volume of infringing activity. Therefore, Sony engaged the services of a company to identify infringing activity associated with particular IP addresses, identify the internet service providers associated with such IP addresses, and notify the internet service providers of the infringing activity. The company engaged by Sony sent over 150,000 notices of copyright infringement activity associated with IP addresses served by Cox during a two-year period.

Cox’s agreement with its subscribers includes a provision prohibiting use of the internet services for purposes of infringement. Cox also took action in response to the notices from Sony’s service provider by implementing a series of escalating actions against subscribers accused of infringement culminating in termination of the subscriber’s account after receipt of 13 notices from Sony’s service provider. During the period in question, Cox terminated 32 accounts as a result of the infringement notices and claims that this stopped 98% of the infringing activity.

The Copyright Act does not expressly include any provisions for secondary liability. The Court expressed a willingness to hold service providers liable for contributory infringement consistent with precedents that predated the Copyright Act, but an unwillingness to expand secondary liability beyond those precedents. According to precedent, a service provider can be held contributorily liable for copyright infringement of another only if that person induces the infringement or provides a service tailored for infringement. Cox did not induce infringement by its subscribers or their users, as evidenced by Cox’s efforts to pass on the infringing notices, suspending services, and terminating accounts. The services Cox provides do much more than facilitate the infringing activity of certain users. The Fourth Circuit’s finding of contributory infringement on the basis that Cox knew some of its users were engaged in infringement exceeds these boundaries and exceeds the limits for imposing contributory liability found in the precedents. Therefore, the Court reversed the Fourth Circuit’s decision and remanded for further proceedings consistent with the opinion.

A concurring opinion penned by Justice Sotomayor and joined by Justice Jackson agreed that Sony could not prove the requisite intent necessary to hold Cox liable for contributory infringement in this case. Justice Sotomayor therefore concurred in the judgment, but wrote separately to criticize the majority for limiting the ways someone might show secondary liability, which she finds inconsistent with both the Copyright Act and relevant precedent. More specifically, the concurring opinion observed that the relevant precedents encouraged the practice of finding secondary liability in ways derived from common law such as aiding and abetting. Further, the concurring opinion criticized the majority opinion for undermining the purpose of DMCA by removing some of the incentives for internet service providers to implement copyright infringement policies that terminate accounts of repeat infringers.

As a result of the Supreme Court’s decision in Cox, it may prove more difficult to hold online service providers contributorily liable for copyright infringement. Although the concurring opinion criticized the majority for potentially undermining some of the DMCA’s policy goals, online service providers should still implement these policies to take advantage of the DMCA’s safe harbor protections.