Supreme Court Narrows Contributory Copyright Infringement Liability for Service Providers

Key Takeaways

• The Supreme Court of the United States has significantly narrowed the scope of contributory copyright infringement liability for service providers.
• Under the ruling, mere knowledge that a service will be used to infringe is insufficient to establish the required intent for contributory liability.
• Contributory liability requires a showing that the service provider either (1) induced the infringement by actively encouraging infringement through specific acts, or (2) provided a service that is tailored for infringement (i.e., that is not capable of a substantial or commercially significant noninfringing use).
• This decision could have significant implications not only for internet service providers, but for other technology companies that act as intermediaries, as the Court has made it significantly more difficult for copyright owners to prevail on secondary liability claims.
• The decision has kicked off a debate about the relevance and importance of the Digital Millennium Copyright Act (DMCA) safe harbor, which can protect service providers from copyright liability for content posted on their platforms by third parties (if certain requirements are met). However, the DMCA will likely remain an important tool for service providers to lessen their infringement risk, and most service providers will want to continue to follow the DMCA requirements to take advantage of the safe harbor for an additional layer of protection.

On March 25, 2026, the Supreme Court significantly narrowed the scope of secondary copyright infringement liability for service providers. In a unanimous decision involving the liability of internet service providers (ISPs) for how their services are used, the Court, in Cox Communications, Inc. v. Sony Music Entertainment, held that mere knowledge that a service will be used to infringe is insufficient to establish contributory liability. Rather, it ruled that 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 such intent can be shown only if the provider either (1) induced the infringement or (2) provided a service tailored for infringement.

Sony Sued Internet Provider for Not Terminating Access to Known Infringers

Sony Music and other music copyright owners brought suit against Cox instead of suing the millions of individuals directly pirating their music, claiming Cox contributed to the piracy by continuing to provide internet service to users that Cox allegedly knew were infringing—Sony notified Cox of 150,000 IP addresses associated with infringement but claimed Cox terminated only 32 subscribers. 

Both District Court and Fourth Circuit Found Contributory Infringement 

Sony sued Cox in the U.S. District Court for the Eastern District of Virginia on two theories of secondary copyright liability: contributory liability and vicarious liability. A jury found for Sony on both theories, determined that Cox's infringement was willful, and awarded $1 billion in statutory damages.

The U.S. Court of Appeals for the Fourth Circuit reversed on vicarious liability, because it found that Cox did not receive a direct financial benefit from its subscribers’ infringement. However, it affirmed as to contributory infringement on the theory that continuing to supply a product with knowledge that the recipient will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for contributory infringement. The Supreme Court granted Cox’s petition for certiorari on the issue of contributory infringement, but it denied Sony’s petition for certiorari on vicarious liability (leaving the Fourth Circuit’s decision that there was no vicarious liability in place). 

The Supreme Court Reverses: Only Two Ways to Show Required Intent for Contributory Liability

The Supreme Court clarified that a service provider is contributorily liable for a user's copyright infringement only if the provider intended its service to be used for infringement, and it held that there are only two ways to show the required intent—(1) showing that the provider induced the infringement or (2) providing a service that is tailored to the infringement. The Supreme Court explicitly rejected the Fourth Circuit’s holding that providing a service with knowledge it will be used to infringe is sufficient. 

1. Inducement: Active Encouragement Through Specific Acts

To show inducement, the copyright owner must show that the provider induced the infringement by actively encouraging users to infringe through specific actions, such as marketing a service as a tool for infringement. For example, an earlier case held the file sharing company Grokster liable for its users’ infringement because it promoted Grokster as a tool to download copyrighted works, and downloading copyrighted works was the principal object of their business model. Here, the Court found no inducement, as it noted that Sony provided no evidence of express promotion, marketing, or intent to promote infringement and that Cox repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts.

2. Tailoring: No Substantial Noninfringing Uses

Alternatively, the copyright owner can demonstrate that the service was tailored to infringe if it can show that it is not capable of a substantial or commercially significant noninfringing use. The “substantial noninfringing use” test is based on a Supreme Court precedent that found that the sale of the Betamax video tape recorder to the general public did not constitute contributory infringement because it could be used to record programs for later personal viewing (which the court found was not infringing), as well as for infringing purposes. In this case, the Supreme Court found that Cox “simply provided internet access, which is used for many purposes other than copyright infringement.” 

Future Implications

This decision is a landmark ruling on the question of contributory liability that has significant implications not only for ISPs, but for other technology companies that act as intermediaries. This could include AI tool providers, some of which are facing claims of secondary liability for user output (in addition to direct infringement claims). By so narrowly defining what is sufficient to show the required intent for contributory infringement liability and holding that mere knowledge that a service will be used to infringe is insufficient, the Court has made it significantly more difficult for copyright owners to prevail on secondary liability claims and has drawn a clear line: Service providers will generally not be held responsible for how some users choose to misuse their services, absent evidence of active inducement or a service designed for infringement. 

Although the opinion was unanimous, Justice Sonia Sotomayor (joined by Justice Ketanji Brown Jackson) wrote a concurring opinion that agreed with the judgment but raised concerns that the majority opinion too narrowly limited secondary liability and ignored other theories of liability, such as aiding and abetting, that could be sufficient. Justice Sotomayor also raised some concern about this decision’s impact on the DMCA safe harbor framework, which she noted some ISPs may now ignore if they no longer face risks of secondary liability. However, as the Court points out in the majority opinion, the DMCA is just a safe harbor that provides a defense to infringement claims and does not impose any obligations on service providers. It was passed to address uncertainty in the law, and companies can choose whether or not to take advantage of it. That said, as discussed below, there are still significant benefits to following the DMCA requirements to take advantage of the safe harbor. The majority opinion does provide a good reminder, however, that not qualifying for the safe harbor, or not following its rules, does not necessarily mean that a use is infringing or have any bearing on whether something is infringing. 

This decision has kicked off debate over its impact on the DMCA. Some commentators have questioned whether the DMCA remains relevant after Cox and whether ISPs and other service providers will still feel the need to comply with DMCA safe harbor requirements, such as terminating repeat infringers or deleting content based on take-down notices from copyright owners. However, the DMCA will likely remain an important tool for ISPs and other service providers to lessen their infringement risk. First, the DMCA doesn’t only cover secondary liability. It also covers direct infringement claims, which can still be a concern for service providers, particularly if they engage in activities such as hosting, reproducing, distributing, or altering user content as part of their service. Direct infringement claims against service providers were not addressed in this decision. In addition, there could be a variety of reasons why a copyright owner may claim the holding in the Cox case is inapplicable in a particular situation, such as arguing that the service provider somehow actively encouraged the infringement. DMCA compliance is a fairly simple and inexpensive way to limit liability, and if nothing else, it can be a belt-and-suspenders approach to protecting against copyright infringement risk. Being able to resolve a lawsuit on an early motion to dismiss or motion for summary judgment, which can enormously reduce the cost of litigation, is much more likely if the service provider has complied with the DMCA safe harbor requirements. As a result, complying with the safe harbor can have significant financial benefits in the event of a lawsuit, regardless of the merits of the case. For all these reasons, most ISPs and other service providers will want to continue to take advantage of the DMCA safe harbor by complying with its requirements.