What happened
The U.S. Supreme Court reversed a Fourth Circuit ruling that had upheld contributory copyright liability against Cox Communications over subscribers' online music infringement, rejecting a theory that helped support a $1 billion verdict for Sony Music Entertainment and other copyright owners.
Writing for the court, Justice Clarence Thomas said Cox could not be treated as a copyright infringer simply because it continued serving subscribers whose internet connections had been linked to infringement notices. Under the court's precedents, he wrote, a company is "not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights."
The decision narrows the path for copyright owners seeking to hold internet service providers liable for users' infringement. The court said contributory liability requires intent that the service be used for infringement, and that intent can be shown only by proving the provider induced infringement or offered a service tailored to infringement.
Sony and other major music copyright owners sued Cox after MarkMonitor, a service they used to track online infringement, sent Cox 163,148 notices during roughly two years identifying Cox subscriber IP addresses associated with allegedly infringing activity. A Virginia federal jury found Cox liable on contributory and vicarious theories, found willfulness and awarded $1 billion in statutory damages.
The Fourth Circuit later affirmed on contributory liability, reasoning that supplying a product with knowledge that the recipient will use it to infringe was enough for contributory infringement, but reversed on vicarious liability and vacated the damages award for reassessment. The Supreme Court granted Cox's petition on contributory liability and reversed that remaining theory.
The majority said Cox did not induce subscribers to infringe, noting that Sony had not shown express promotion or marketing of infringement and that Cox sent warnings, suspended service and terminated accounts. The court also said Cox's internet service was capable of substantial lawful uses because it simply provided internet access used for many purposes other than infringement.
Justice Thomas' opinion was joined by Chief Justice John Roberts and Justices Samuel Alito, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, concurred only in the judgment, agreeing Cox should prevail but warning that the majority needlessly curtailed secondary liability in a way she viewed as inconsistent with precedent and statute.
The case now returns on remand without the Fourth Circuit's contributory-liability ruling against Cox, leaving the copyright owners without the liability theory that had preserved their verdict after vicarious liability fell away.