Cox Communications, Inc. v. Sony Music Entertainment
The Court holds that an Internet service provider is not contributorily liable for its subscribers' copyright infringement merely because it knew certain accounts were being used to infringe and kept serving them. Contributory liability requires that the provider intended its service to be used for infringement, which can be shown only by inducement or by a service tailored to infringement — and Cox did neither.
Case background
Cox Communications, Inc., is an Internet service provider serving approximately six million subscribers, each associated with a unique Internet Protocol address. Providers like Cox have limited knowledge of how their services are used: they know which IP address corresponds to which subscriber account, but cannot distinguish individual users or directly control how the service is used. Cox contractually prohibits subscribers from using their connection to post, copy, transmit, or disseminate infringing content.
Sony Music Entertainment and other major music copyright owners enlisted MarkMonitor to track copyright infringement across the Internet. Over the roughly two-year period at issue, MarkMonitor sent Cox 163,148 notices identifying IP addresses of Cox subscribers associated with infringement. Sony sued Cox in Federal District Court on two theories of secondary liability: that Cox contributed to its users’ infringement by continuing to serve subscribers it knew were associated with infringement, and that Cox was vicariously liable for that infringement. The jury found for Sony on both theories, found Cox’s infringement willful, and awarded $1 billion in statutory damages. The Fourth Circuit affirmed as to contributory liability, reasoning that supplying a product with knowledge that the recipient will use it to infringe is exactly the sort of culpable conduct sufficient for contributory infringement, and reversed as to vicarious liability. This Court granted Cox’s petition for certiorari as to contributory liability.
Questions Presented
(1) Did the Fourth Circuit err in holding that a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?
(2) Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c)? (Review was granted limited to the first question.)
Holding
The provider of a service is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement, and that intent can be shown only if the provider induced the infringement or the provided service is tailored to that infringement. Cox neither induced its users’ infringement nor provided a service tailored to infringement: it did not induce or encourage its subscribers to infringe, Sony offered no evidence of express promotion or intent to promote infringement, Cox repeatedly discouraged infringement through warnings and suspensions, and Internet access is plainly capable of substantial noninfringing uses. Accordingly, Cox is not contributorily liable for the infringement of Sony’s copyrights. The Fourth Circuit’s contrary rule went beyond the two forms of liability recognized in Grokster and Sony and conflicted with this Court’s repeated admonition that contributory liability cannot rest only on a provider’s knowledge of infringement and insufficient action to prevent it. The Digital Millennium Copyright Act’s safe harbor does not change the analysis: it creates new defenses from liability rather than imposing liability on providers who serve known infringers.
The Court
Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Alito, Kagan, Gorsuch, Kavanaugh, and Barrett joined. Justice Sotomayor filed an opinion concurring in the judgment, in which Justice Jackson joined.
What this episode contains
This episode is an AI-narrated reading of the majority opinion in Cox Communications, Inc. v. Sony Music Entertainment, written by Justice Thomas.
AI disclosure: The voice in this episode is AI-generated, using a machine learning model styled to loosely resemble the authoring justice. Tone, inflection, pacing, and emphasis are artifacts of the model and should not be attributed to Justice Thomas. The text being read is the Court’s published majority opinion, lightly adapted to improve readability for the spoken format.