Where to Draw the Line? The Supreme Court Takes Up Sony v. Cox

[1]

In December of last year, the Supreme Court heard oral arguments for Sony Music Entertainment v. Cox Communications, Inc.[2] The case reached the Supreme Court after Cox appealed the Fourth Circuit’s decision.[3] The Court must now determine if an Internet Service Provider (“ISP”) can be found liable under a theory of contributory liability for copyright infringement when the ISP continues to provide internet service to subscribers after receiving notice of the subscriber’s infringement.[4] The Fourth Circuit held that Cox could not be vicariously liable, after the trial court had indicated that they could be, but affirmed the trial court’s ruling that Cox could be liable for contributory copyright infringement, finding that a reasonable jury could determine Cox had knowledge of the infringement and continued to materially contribute to it through providing internet access.[5]

Plaintiffs, Sony Music Entertainment and other owners of copyrighted music, sued Cox for the infringement of Cox’s internet service subscribers.[6] Plaintiffs had hired MarkMonitor, an anti-piracy company, to catch infringements of the Plaintiff’s copyrighted work.[7] Upon finding that a user downloaded a copyrighted file, it would notify the ISP to which the user subscribed.[8] When Cox received notices, it would notify the infringing subscribers and the message the subscriber received depended on their standing with Cox which was based on whether they had previously infringed on a copyright.[9] Cox ultimately modified their policy regarding subscriber infringement as they received more notices from MarkMonitor, mitigating consequences for its subscribers.[10] Cox would ultimately only terminate thirty-two subscribers for violating its infringement policy, a remarkably low number of terminations given the 163,148 notices from MarkMonitor, leading to Plaintiffs’ suit.[11] Plaintiffs sued for vicarious and contributory copyright infringement.[12] At the district court, a jury found Cox liable under both theories of liability finding damages in excess of $1 billion, Cox appealed, and the Fourth Circuit reversed the vicarious liability verdict and affirmed the contributory liability verdict, remanding for a new trial on damages.[13] 

Copyright owners possess the “exclusive rights” to reproduce, distribute, and prepare derivative works based on their copyrighted works.[14] An infringer violates these exclusive rights.[15] In an action against a copyright infringer, the owner may recover actual damages and the infringer’s profits.[16] Congress created a “safe harbor defense” through the Digital Millennium Copyright Act (“DMCA”) for ISPs, eligibility for the defense requires that the ISP have “adopted and reasonably implemented … a policy that provides for the termination … of subscribers and account holders of the service provider’s system or network who are repeat infringers.”[17] One can be liable for contributory infringement when “one who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.”[18]

The Fourth Circuit explained that Cox did not qualify for the safe harbor defense because the claims arising in this suitcoincide with a period during which the Fourth Circuit ruled on a dispute involving the company, that their measures were inadequate to meet the statutory requirement.[19] The court affirmed the district court’s ruling that Cox had substantially certain knowledge based on the previous infringement notice provided by MarkMonitor.[20] The court also affirmed the trial court finding that Cox materially contributed to the infringement, because the jury reasonably could have found for Sony, given that they saw evidence that Cox knew of specific instances of repeat infringement, that they were able to trace these instances to specific users, and still provided internet access.[21] Cox has since appealed to the Supreme Court and oral arguments have been heard on whether an ISP can be contributorily liable for copyright infringement.[22]

At oral arguments, the justices questioned both sides’ arguments.[23] The Court struggled to accept Cox’s argument – that ISPs cannot be held liable for the acts of its subscribers without some affirmative contribution to their infringement – because such a holding would render the DMCA’s safe harbor virtually meaningless and would provide no incentive for Cox to protect against infringement.[24] The Court also struggled to accept Plaintiffs’ argument because such a ruling could possibly adversely affect universities and hospitals where the ISP provides service to thousands of users.[25] The Court likely wants to find a middle ground, which would allow the Court to strike a balance between protecting copyright owners and protecting internet infrastructure, that universities, hospitals, and institutions use to provide internet access to so many users outside of their control.[26]

References

[1] Photo by Luke Peterson, Black Wireless Headphones on a White Table, Unsplash (Apr. 13, 2021),  https://unsplash.com/photos/black-wireless-headphones-on-white-table-lUMj2Zv5HUE.

[2] See Blake Brittain, US Supreme Court Wrestles with Copyright Dispute Between Cox and Record Labels, Reuters, https://www.reuters.com/legal/government/us-supreme-court-hear-copyright-dispute-between-cox-record-labels-2025-12-01/ (last visited Mar. 6, 2026) (reporting on oral arguments for case before Supreme Court in December of 2025).

[3] See Novika Ishar, Supreme Court Hears Major Copyright Liability Between Music Industry and ISPs, https://www.romanolaw.com/supreme-court-hears-major-copyright-liability-case-between-music-industry-and-isps/ (last visited Mar. 6, 2026).

[4] See id.

[5] See Sony Music Ent. v. Cox Commc’ns, Inc., 93 F.4th 222, 227 (4th Cir. 2024).

[6] See id. at 228.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id. at 227.

[13] See id.

[14] See 17 U.S.C. § 106 (2018).

[15] See id. at § 501(a).

[16] See id. at § 501(b), 504(a).

[17] See id. at § 512(i)(1)(A)

[18] See Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).

[19] See Sony Music Ent., 93 F.4th at 228.

[20] See id. at 234.

[21] See id. at 236–37.

[22] See Brittain, supra note 2.

[23] See Ronald Mann, Court Seems Dubious of Billion-dollar Judgment for Copyright Infringement, SCOTUSblog, https://www.scotusblog.com/2025/12/court-seems-dubious-of-billion-dollar-judgment-for-copyright-infringement/ (last visited Mar. 7, 2026)

[24] See id.; see also Brittain, supra note 2.

[25] See Mann, supra note 23.

[26] See id.