In a blockbuster case now before the Supreme Court, an Internet Service Provider (“ISP”), Cox Communications (“Cox”), faces liability for its users’ mass piracy of recorded music, a verdict that threatens to fundamentally reshape the boundaries of contributory copyright liability.[i] The Fourth Circuit upheld Cox’s liability for contributory infringement, while vacating its vicarious liability and remanding damages, and the Supreme Court granted review.[ii] The case raises a central question: Can an ISP be held liable simply for continuing to provide internet service to users after receiving copyright infringement notices?[iii] Or must contributory liability require affirmative acts that induce or promote infringement?[iv]

The foundation of U.S. copyright law lies in the Copyright Act of 1976 (“the Act”), enacted under Congress’s constitutional authority in Article I, Section 8, Clause 8, to regulate copyrights and secure exclusive rights to authors.[v] The Act grants authors exclusive rights—including reproduction, distribution, and public performance—and provides remedies against those who infringe upon them.[vi] In 1998, Congress addressed the challenges of the digital era by enacting the Digital Millennium Copyright Act (“DMCA”), which created safe harbors that limit the liability of service providers who adopt and reasonably enforce policies against repeat copyright infringers.[vii] These provisions were designed to foster cooperation between rights holders and intermediaries while avoiding a system that would effectively make internet providers uncompensated copyright police.[viii]

However, neither the Act nor the DMCA define when intermediaries can be held liable for the infringing acts of others.[ix] Instead, courts have developed the doctrines of contributory and vicarious liability. Contributory liability applies where a party knowingly induces, causes, or materially contributes to infringement.[x] Vicarious liability, by contrast, arises when a defendant has both the ability to supervise infringing activity and a direct financial interest in it.[xi] This layered framework, statutory safe harbors,  and judge-made doctrines , sets the stage for Cox v. Sony Music. Cox asks whether continuing to provide service after receiving infringement notices falls within the kind of “material contribution” courts have recognized, or whether Congress, in crafting the DMCA, tolerated such inaction.[xii] The Supreme Court’s resolution will determine whether the boundary between legislative policy and judicial doctrine holds, or whether secondary liability will expand in ways that effectively make service providers the new copyright police.

In 2019, a jury in Virginia district court found Cox liable for willful contributory and vicarious infringement of more than 10,000 copyrighted works, awarding $1 billion in statutory damages.[xiii] On appeal, in Sony Music Entertainment v. Cox Communications, the Fourth Circuit affirmed contributory liability, reversed vicarious liability, and vacated the damages award while remanding for retrial.[xiv] Specifically, the Fourth Circuit held that Cox’s flat monthly fee (regardless of users’ infringing use) meant that it did not receive a direct financial benefit from the infringing conduct, and thus, vicarious liability could not stand.[xv] However, the court concluded that Cox had knowledge of specific repeat infringers, through infringement notices, and materially contributed to the infringement by continuing to provide internet access.[xvi] Because the jury’s award did not separate contributory liability damages from those attributable to vicarious liability, the court vacated the $1 billion judgment and remanded for recalculation.[xvii]

Cox petitioned for certiorari, asking the Supreme Court whether an ISP can be held contributorily liable for maintaining service after receiving infringement notices, without proof of affirmative promotion or facilitation.[xviii] The petition also challenges the jury instruction on willfulness under 17 U.S.C. § 504(c)(2), arguing that it improperly allowed liability based on knowledge of subscriber infringement alone.[xix] The Supreme Court granted certiorari in Cox Communications Inc., et al. v. Sony Music Entertainment, et al., limited to the issues raised in Cox’s petition. [xx]

Cox’s principal argument is that contributory liability should require affirmative misconduct, not mere inaction.[xxi] It asserts that continuing service after notice does not suffice to establish material contribution.[xxii] The petition warns that treating passive inaction as liability transforms ISPs into makeshift copyright police, forcing them to terminate users’ internet service based solely on accusations.[xxiii] On the willfulness question, Cox contends that enhanced statutory damages under 17 U.S.C. §  504(c)(2) should demand proof of the defendant’s own intentional or reckless conduct, not just knowledge of others’ infringements.[xxiv] Finally, Cox highlights policy risks: If the ruling mandates disconnection upon notice, ISPs may adopt aggressive over-blocking policies, which could chill legitimate internet service usage, including access to speech, education, and essential services.[xxv]

Sony Music Entertainment (“Sony”) counters  that Cox’s misconduct went far beyond passive inaction.[xxvi] It points to evidence that Cox received over 160,000 infringement notices tied to particular subscribers and allegedly weighed subscriber revenue against termination decisions.[xxvii] According to Sony, this pattern amounts to a “material contribution” under the vicarious liability doctrine.[xxviii] Sony also emphasizes that deterrence demands affirmation. Without secondary liability, ISPs could systematically ignore notices and profit from repeat infringers. Sony argues that the Fourth Circuit’s rule aligns current liability doctrine with the realities of modern digital networks.[xxix]

If the Supreme Court affirms the Fourth Circuit’s approach—that a provider’s continued service after receiving specific infringement notices can amount to material contribution—plaintiffs may be able to hold a broad array of intermediaries liable for third-party copyright infringement simply by showing notice plus continued service.[xxx] Such a shift would draw the law closer to the “inducement or knowledge” standard from the early file-sharing era, illustrated in A&M Records v. Napster and MGM v. Grokster. These cases explore when a service provider’s awareness or encouragement of infringement crosses into liability and offer a useful guide for understanding the stakes in Cox.

In Napster, the Ninth Circuit confronted the music-sharing service, Napster, a peer-to-peer file-sharing platform that enabled users to trade MP3 music files directly with one another.[xxxi] The court held that Napster was contributorily liable because it had both actual knowledge of specific infringing files and the ability to block access to them, but failed to act.[xxxii] It also found Napster vicariously liable because it profited from infringement and retained control over user activity.[xxxiii] Later, in Grokster, the Supreme Court evaluated another peer-to-peer service that, unlike Napster, did not host files itself but distributed software allowing decentralized file-sharing.[xxxiv] Grokster acted less like a warehouse for infringing files and more like a manufacturer of tools that enable file sharing. Therefore, the Court held that a distributor could be liable where it promoted its product “with the object of promoting” infringement, even if the technology was capable of lawful uses.[xxxv]

Together, these cases established that secondary liability may attach either where a service has knowledge of infringement and fails to act, or where a provider affirmatively encourages infringement. Significantly, this trajectory represents a departure from the Supreme Court’s Betamax principle, which shielded providers of technologies with “substantial noninfringing uses” from automatic liability for customers’ misconduct.[xxxvi] Betamax ensures that neutral tools, such as broadband internet access, are not treated as inherently unlawful simply because they can be misused.[xxxvii]

A different result, as Cox proposes, would require affirmative, intent-based acts (e.g., advertising to promote infringement) in line with the inducement doctrine, preserving greater protection for a neutral infrastructure and limiting secondary liability to actors whose conduct actively encourages infringement.[xxxviii] This would also align with the Supreme Court’s inducement holding in Grokster.[xxxix]

In contrast, a ruling that significantly expands secondary liability could provoke a response from Congress, which may feel compelled to step in and provide legislative clarity or establish new, more specific regimes to balance the interests of copyright holders with the need for stable and open internet access.[xl]  Legislative action could take the form of stricter notice-processing standards, defined thresholds for knowledge, or procedural protections before disconnection.[xli] Furthermore, the doctrinal ripple effects would extend beyond music and file-sharing to include streaming services (i.e., Netflix), user-generated content platforms (i.e., YouTube, TikTok), and app marketplaces (i.e., Apple App Store, Google Play Store). A broad rule of provider responsibility for inaction after notice could be invoked in suits against other intermediaries, such as streaming services, cloud storage providers, and emerging technology platforms that facilitate user content.[xlii] Conversely, a narrow rule might limit secondary liability claims against many modern platforms, encouraging rights holders to favor private or contractual remedies.[xliii]

Cox v. Sony Music gives the Supreme Court a pivotal chance to define the boundary between passive infrastructure and active wrongdoing. Treating continued service after notice of copyright infringement as a material contribution would turn ISPs into de facto copyright enforcers, inviting “mass evictions” from the internet and renewed legislative scrutiny.[xliv] Requiring affirmative inducement, by contrast, would protect neutral technologies with substantial, non-infringing uses, leaving rights holders to pursue enforcement through private or contractual means.[xlv]

[i] Sony Music Ent. v. Cox Commc’ns, Inc., 93 F.4th 222, 227 (4th Cir. 2024) (describing Cox’s potential liability in users’ mass piracy of recorded music and the $1 billion verdict against Cox).

[ii] See id. (affirming contributory infringement, reversing vicarious infringement, and noting the Supreme Court’s grant of certiorari).

[iii] Id. at 236. (holding that evidence was sufficient for jury to find that Cox materially contributed to infringement by continuing to provide internet service to users who pirated digital content).

[iv] Petition for Writ of Certiorari at 12–14, Cox Commc’ns, Inc. v. Sony Music Ent., No 24-171 (U.S. Aug. 29, 2024) [hereinafter “Cox Pet.”] (arguing contributory liability requires “affirmative conduct” that induces infringement).

[v] U.S. Const. art. I, § 8, cl. 8.

[vi] See generally 17 U.S.C. §§ 106, 501(a) (defining copyright to encompass reproducing, distributing, and publicly performing exclusively held material without authorization and providing the elements for copyright infringement).

[vii] See 17 U.S.C. § 512; S. Rep. No. 105–190, at 20 (1998) (“The limitations in subsections (a) through (d) protect qualifying service providers from liability or all monetary relief for direct, vicarious, and contributory infringement.”).

[viii] See S. Rep. No. 105–190 at 40 (stating that Title II of the DMCA provides strong incentives for service providers and copyright owners to cooperate to “detect and deal with copyright infringements that take place in the digital networked environment”).

[ix] See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434–35 (1984) (“The Copyright Act does not expressly render anyone liable for infringement committed by another.”).

[x] See Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (“[O]ne who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”).

[xi] See id. (“[A] person who has promoted or induced the infringing acts of the performer has been held jointly and severally liable as a ‘vicarious’ infringer, even though he has no actual knowledge that copyright monopoly is being impaired.”) (citing Shapiro, Berstein & Co. v. H.K. Green Co., 316 F.2d 304, 307–08 (2d Cir. 1963)).

[xii] See Cox Pet., supra note iv at i (asking whether Fourth Circuit erred in holding that an ISP may be held liable for “materially contributing” to copyright infringement based solely on its knowledge of users’ infringing activity and failure to terminate access, without proof of any affirmative act by the ISP).

[xiii] Sony Music, 93 F.4th at 229 (describing the jury’s verdict and damages award).

[xiv] See id. at 227 (summarizing the Fourth Circuit’s disposition of the appeal).

[xv] Id. at 232 (holding that a flat monthly fee, without more, does not constitute a direct financial benefit from infringement).

[xvi] Id. at 236 (finding Cox had knowledge of specific infringers and contributed to infringement by continuing their service).

[xvii] Id. at 237 (vacating the damages award because it was impossible to determine if the jury was influenced by the erroneous vicarious liability verdict).

[xviii] See Cox Pet., supra note iv (presenting the first question presented for Supreme Court review).

[xix]  See id. at 17–18 (challenging the jury instruction on willfulness).

[xx] See Supreme Court Docket, Cox Commc’ns, Inc. v. Sony Music Ent., No. 24–171 (U.S. cert. granted June 30, 2025) (noting the grant of certiorari on Cox’s petition).

[xxi] See Sony Music, 93 F.4th at 236 (contrasting Cox’s “passive inaction” with requisite culpable conduct).

[xxii] Id. (upholding jury’s finding that providing service with knowledge of impending infringement constitutes material contribution).

[xxiii] See Cox. Pet., supra note iv at 14–15 (warning that the Fourth Circuit’s ruling forces ISPs to become “copyright police”).

[xxiv] Id. at 17–18 (arguing willfulness must be based on the defendant’s own actions, not knowledge of subscriber’s actions).

[xxv] See Brief for the United States as Amicus Curiae at 12–14, Cox Commc’ns, Inc. v. Sony Music Ent., No. 24–171 (U.S.) (filed Jan. 10 2025) (highlighting the policy risks of mandatory termination and over-blocking).

[xxvi]  Sony Music, 93 F.4th at 236 (recounting the publishers’ evidence of Cox’s conduct).

[xxvii] Id. at 228–29 (detailing the volume of infringement notices and Cox’s internal decision-making).

[xxviii] Id. at 236 (affirming the jury could find this conduct constituted material contribution).

[xxix] See Brief for Appellees Sony Music Entertainment et al. in Opposition at 25, Sony Music Ent.v. Cox Commc’ns, Inc., No. 21–1168 (U.S.) (filed Jul. 23, 2021) (arguing that Cox’s proposed foreknowledge standard would “effectively insulate” ISPs outside the DMCA safe harbor from liability for habitual infringers).

[xxx] See Banu Naraghi, The Future of Copyright Enforcement: A Pivotal Supreme Court Case for the Digital Age, ECJ Law Blog (July 14, 2025), https://www.ecjlaw.com/ecj-blog/the-future-of-copyright-enforcement-a-pivotal-supreme-court-case-for-the-digital-age-by-banu-naraghi [https://perma.cc/L9TT-PJE6] (providing that effects of Supreme Court decision in line with Fourth Circuit’s approach may extend beyond traditional ISPs to a broad range of intermediaries such as broadband ISPs, Wi-Fi operators, and certain cloud or hosting services).

[xxxi] See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1011 (9th Cir. 2001) (discussing Napster’s operation of allowing “rapid transmission of digital audio files from one computer to another by electronic mail or any other file protocol”).

[xxxii]  Id. at 1022–1024 (holding Napster contributorily liable because it had actual knowledge of infringing activity and failed to act).

[xxxiii] Id. (holding Napster vicariously liable for financial benefits received and for Napster’s ability to control infringers’ access).

[xxxiv] Metro-Golden-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919–20 (2005) (explaining Grokster’s purpose as a peer-to-peer network distributing software and allowing users’ computers to communicate directly with each other, without need for central server).

[xxxv] Id. at 936–37 (holding that liability attaches where a distributor promotes infringement through marketing or design, regardless of other lawful uses).

[xxxvi] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984) (“Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.”).

[xxxvii] Sony Corp. of Am., 464 U.S. at 442 (holding that the sale of a VCR was not contributory infringement because of substantial lawful uses, establishing the “Betamax principle”); see also Mark A. Lemley & R. Anthony Reese, Reproducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 102, 104–05 (2004) (discussing how the Betamax rule protects innovation while still allowing inducement liability under Grokster).

[xxxviii] See Sony Music, 93 F.4th at 236 (“Cox claims its contribution must ‘amount[] to culpable conduct equivalent to aiding and abetting the infringement,’ and that “failing to prevent” its subscribers’ infringement does not suffice [for liability to attach].”).

[xxxix] See Grokster, Ltd., 545 U.S. at 919 (holding that one who distributes a device with the object of promoting its use to infringe copyright is liable for resulting acts of infringement by third parties—the “inducement” theory).

[xl] See Supreme Court to Examine Liability of Internet Service Providers for Their Users’ Copyright Infringement, Cong. Rsch. Serv., LSB11350 5 (Aug. 25, 2025) (describing how Congress may amend the Copyright Act to more specifically codify judicially developed secondary-liability doctrines as done in the Patent Act).

[xli] See id. (expanding on the types of amendments that Congress may make to the Copyright Act, such as, more precisely defining what constitutes “material contributing” to infringement, making “willful” infringement subject to more damages, or expanding/narrowing existing immunities that ISPs and other online service providers have from copyright liability).

[xlii] See Sony Music, 93 F.4th at 233, 236 (describing other data-intensive services such as streaming, video-gaming, etc., in comparison to Cox’s network and users’ ability to infringe).

[xliii] Cong. Rsch. Serv., supra note xl.

[xliv] Id. (“If the lower courts’ rulings in Cox v. Sony are upheld, Cox warns that ISPs will be forced to engage in “mass evictions” from the internet.”).

[xlv] See generally Sony Music, 93 F.4th at 222 (detailing the appeal court’s reasoning on contributory and vicarious liability and remanding on damages).