IP Tech Knowledgy

Businesses and websites that facilitate online usage and third-party postings should not ignore copyright takedown notices without carefully considering if they fall under the recent Supreme Court decision that provides immunity from liability for certain internet service providers. The Digital Millennium Copyright Act (“DMCA”) is still in force, albeit with scaled-down applicability, despite the March 25, 2026, Cox Communications, Inc., et al. v. Sony Music Entertainment et. al. decision.

The DMCA creates a bargain to online service providers, allowing them to avoid liability for what their users may post on the provider’s website or by utilizing the provider’s digital system or network. This part of the DMCA focuses on entities that provide services such as internet service providers, online forums, interactive websites, or other technical or content related companies.  The bargain is that if the provider complies with takedown notices sent by copyright owners and actively disables the alleged copyright infringer’s ability to continue using the service or the website, then that service provider or website owner will not have liability for the infringement or to the alleged infringer for taking that precautionary action. The DMCA conditions the limitation on liability to a service provider that has designated an agent to receive notice of the claimed infringement, and then acts expeditiously to remove or disable access to the infringing material. This creates an incentive for the provider to comply with takedown notices, especially repeat notices.  Failure to comply with the notices risks contributory copyright liability due to what a user has posted, even though the service provider was not directly involved in the infringing act.  

The recent Cox decision ruled that even if the service provider does not follow the take-down protocol, it can avoid liability unless it induced the infringement and/or provided services tailored to that infringement. Those standards are very fresh and have not been applied to any cases other than the facts of the Cox Supreme Court case featuring a large internet service provider that did not have the individual user’s identity.  

Smaller companies with a more direct connection with the infringing user, and who may know the identity of the user, may not fall under the fact pattern of the Cox ruling. A service provider who can identify particular infringers, or in any way may have its business model tailored toward benefitting or inducing copyright infringement, rather than being absolutely neutral, might have potential liability, and thus may want to protect itself by complying with takedown notices against known identifiable copyright infringers.  

The Supreme Court case did not negate the DMCA, Cox merely narrowed the DMCA’s application.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com