IP Tech Knowledgy

The Supreme Court has narrowed the standard for when an internet service provider can be liable as a contributory copyright infringer for a customer/user’s actions.  The decision may also cover other online activities.

In its March 25, 2026, Cox Communications, Inc., et al. v. Sony Music Entertainment et. al. decision, the Supreme Court ruled that a service provider can only have copyright liability for the infringing acts of another if the provider intended that the provided service be used for infringement. The Court narrowed the situations that can be used to show that intention to two options: either the service provider induced the infringement and/or the provided service is tailored to that infringement. 

The unanimous Court ruled that Cox Communications, an internet service provider, is not liable for its subscribers’ copyright infringement, even if Cox did not take down individual users' clearly infringing material after multiple request by the copyright owners. Website owners and others who provide forums for posting materials still may not be able to use this case to negate their own liability for what their users post. Copyright owners, now more than ever, may have to go after individual infringers rather than using the easier method of sending infringement notice to ISPs, and having the ISPs disable the users’ access. This ruling also may reduce the force of the Digital Millennium Copyright Act (“DMCA”), which creates an incentive for ISPs, and other online internet conduits — including website operators, to stop the infringers.  

Justice Thomas’ decision determined that there are only two ways in which a third party can be liable for copyright infringement based on a third party’s activity. The “inducing” option focuses on whether the service provider encouraged the infringement, or promoted the service as a way to infringe, or whether its business model, and thus revenue from sales, is based on its users using copyrighted works of others without permission. The “tailored to the infringement” option focuses on whether the system does or does not have substantial or commercially significant non-infringing uses.  A system whose main purpose seems more likely to foster infringing use could lead to the proprietor being deemed a contributory infringer. 

Larger ISPs will benefit more from this ruling, because their main purpose is to provide internet service to customers, regardless of what the customer’s activities on the Internet will be. An ISP generally neither promotes a specific activity or usage, and its system is not specifically created to foster infringement. An ISP’s business model does not rely on infringers. Smaller websites that have a more direct purpose on their site of inducing infringement, have more direct contact with the infringers, and focus their brand in some way that fosters infringement may still face liability. Those non-ISP companies that interact more with the users, their purpose could be more directly related to the infringement, and they are more directly receiving money for services that allow the infringing usage which could support a claim of aiding and abetting— or inducing— more obviously. Smaller websites also likely tailor their site or systems to foster infringement.

Justice Sotomayor agreed with the outcome of Cox, but presented a strong concurring opinion that the DMCA would lose much of its strength and no longer create the enticement for ISPs to remove infringing users from its system. The DMCA created a bargain for ISPs, web hosts, and websites: if the provider receives notice that someone on its system/site is infringing a copyright, the provider can take down the infringement or deactivate the users, and the provider will not have liability to the infringer for doing so. This take-down procedure helps copyright owners avoid effort and expense in hunting down and stopping infringers. Justice Sotomayor wrote that the Cox ruling would disincentivize the provider from taking action or even worrying about the DMCA, so long as the provider believes it is neither inducing the infringement or tailoring its system to help infringers. The main criticism of the Cox decision so far by scholars likewise expresses concern about the demise of the DMCA.

ISPs and websites can help themselves to avoid liability by taking steps that do not in any way seem to induce a potential infringer from using the site, or to market the service for infringing purposes, and should not add facets to the service or site that seem tailored to promoting copyright infringement. Document these careful decisions and approaches to have evidence later if sued for contributory copyright infringement. If a business’ goals and operations cannot heed these guidelines, be sure to follow the notice/takedown provisions of the DMCA to fit within its safe harbor.

Copyright owners have a heavier burden in the wake of Cox. Their lawsuits against ISPs would have to prove one of the two factors in Justice Thomas’ opinion.  A more troublesome task is that if an ISP or other website provider stops issuing take-down notices – on the theory that it is not liable – then a copyright owner’s only recourse is to find where individual infringers pop up,  wield the mallet of a lawsuit, and then play Whack-a-Mole to beat down each infringer.

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