Supreme Court Significantly Narrows Liability for Contributory Copyright Infringement
Case Name and Number: Cox Communications, Inc. v. Sony Music Entertainment,
No. 24-171
Introduction: Today, the Supreme Court held—in an opinion joined by seven Justices—that contributory copyright infringement requires inducement of infringement or provision of a service tailored to infringement, squarely rejecting broader theories of contributory infringement liability.
Background: Cox Communications is an internet service provider that serves millions of customers. Some of those customers illegally downloaded copyrighted works. Sony and other copyright holders sued, asserting that Cox was contributorily liable for copyright infringement because it failed to adequately police its customers’ usage and deactivate accounts known to infringe. The district court found Cox liable for contributory copyright infringement and awarded $1 billion in statutory damages. The Fourth Circuit affirmed with respect to liability, holding that “supplying a product with knowledge that the recipient will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for contributory infringement.”
Issue: Whether a service provider’s knowledge of users’ infringement is sufficient to establish contributory liability under the Copyright Act.
Court’s Holding: In an opinion written by Justice Thomas, the Supreme Court held that a service provider is contributorily liable for infringement under the Copyright Act “only if it intended that the provided service be used for infringement”—and that “[t]he intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.”
The Court explained that the text of the Copyright Act does not expressly create secondary liability, and “[o]rdinarily, when Congress intends to impose secondary liability, it does so expressly.” It observed that “[the Court’s] precedents have recognized specific forms of secondary copyright liability that predated the Copyright Act,” but stated that, in the absence of congressional authorization of secondary liability, it was “loath to expand such liability beyond those precedents.” The precedents hold that a service provider may be held contributorily liable only in two situations: when it induces a user’s infringement or provides a service tailored to infringement.
The Court explained that “[a] provider induces infringement if it actively encourages infringement through specific acts.” Here, the Court found, “Cox did not ‘induce’ or ‘encourage’ its subscribers to infringe in any manner. Sony provided no ‘evidence of express promotion, marketing, and intent to promote’ infringement.”
Next, the Court stated that “[a] service is tailored to infringement if it is ‘not capable of “substantial” or “commercially significant” noninfringing uses.’” But “Cox’s Internet service was clearly ‘capable of “substantial” or “commercially significant” noninfringing uses.’ Cox did not tailor its service to make copyright infringement easier. Cox simply provided Internet access, which is used for many purposes other than copyright infringement.”
The Court emphasized that “mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe.” It observed that “[h]olding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents.”
Finally, the Court rejected Sony’s argument that the Digital Millenium Copyright Act’s safe harbor provisions warranted broader liability, explaining that those provisions created a defense to liability, not grounds for expanding liability.
Justice Sotomayor authored an opinion concurring in the judgment, which Justice Jackson joined. The concurring Justices would have allowed copyright plaintiffs to establish contributory liability based on other common law doctrines, including aiding and abetting, but agreed that Cox was not liable because it lacked any intent to aid infringement.
The Court’s decision will make it more difficult for copyright plaintiffs to impose contributory infringement liability on internet service providers, content platforms, and other service providers.
Mayer Brown filed an amicus brief in support of petitioners on behalf of Google, Amazon, Microsoft, Mozilla, and Pinterest.
Read the opinion here.