Cox Communications v. Sony Music Entertainment

    Issues

    Can a service provider be held liable for materially contributing to copyright infringement if it has mere knowledge of another’s direct infringement, and does that mere knowledge suffice to find willfulness under 17 U.S.C. § 504(c)? 

    Oral argument:
    December 01, 2025
    Court below:
    United States Court of Appeals for the Fourth Circuit

    This case asks whether a service provider can be held liable for materially contributing to copyright infringement if it has mere knowledge of another’s direct infringement, and whether such knowledge alone makes infringement willful under 17 U.S.C. § 504(c). Cox contends that providing technology at arm’s length is not a material contribution and that its response to customer infringement was not willful unless it knew its own conduct was infringing. Sony argues that supplying a product to known infringers qualifies as a material contribution and that awareness of facilitating illegal activity meets the willfulness standard of § 504(c). The outcome of this case has implications for consumer fairness and innovation incentives. 

    Questions as Framed for the Court by the Parties

    (1) Whether the U.S. Court of Appeals for the 4th Circuit erred in holding that a service provider can be held liable for "materially contributing" to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it; and (2) whether the 4th Circuit erred in holding that mere knowledge of another's direct infringement suffices to find willfulness under 17 U.S.C. § 504(c).

    Facts

    Copyright owners, under the Copyright Act, have the exclusive right to reproduce, distribute, perform, display, or prepare derivative works based upon their copyrighted works. 

    Cox Communications, Inc. (“Cox”) provides internet, telephone, and cable television service to six million customers. Between 2013 and 2014, the anti-piracy company MarkMonitor sent Cox more than 163,000 infringement notices identifying instances of illegal file sharing. Cox’s response to these notices varied depending on the subscriber’s status within Cox’s thirteen-strike policy. Under this policy, responses ranged from an email to a temporary suspension. During that period, Cox terminated thirty-two subscribers for copyright violations.

    Sony Music Entertainment (“Sony”), along with numerous record companies and music publishers, sued Cox in the United States District Court for the Eastern District of Virginia. Sony alleged that Cox’s subscribers used its internet service to download and distribute copyrighted songs. As a result, Sony claimed that Cox was liable for copyright infringement based on secondary liability. After discovery, the case proceeded to trial on two theories of secondary liability: contributory and vicarious copyright infringement. The jury found Cox liable for willful contributory infringement and vicarious copyright infringement of 10,017 copyrighted works. The jury awarded Sony over $1 billion in damages. The district court denied Cox’s post-trial motions for judgment as a matter of law and to lower the amount of damages awarded.

    Cox appealed to the United States Court of Appeals for the Fourth Circuit. On February 20, 2024, the Fourth Circuit affirmed in part, reversed in part, vacated in part, and remanded. The Court held that Cox was not vicariously liable because the company did not profit from subscriber infringement, as all customers paid flat monthly fees regardless of usage. However, the Court affirmed the jury’s finding of willful contributory infringement, concluding that Cox knowingly continued providing internet service to subscribers substantially certain to infringe. The Fourth Circuit vacated the $1 billion damages award and ordered a new trial on damages because the original award improperly included vicarious liability.

    The Digital Millenium Copyright Act (“DMCA”) offers internet service providers (“ISPs”) a safe harbor if they adopt and implement a policy that provides for termination of service to repeat infringers. Based on the holding of another suit against Cox in the Fourth Circuit, the Court determined that Cox does not qualify for this safe harbor because its policy for repeat infringers was insufficient.

    Cox petitioned the United States Supreme Court for certiorari, seeking review of whether an internet service provider can materially contribute with mere knowledge of infringement and whether this knowledge is willful. On June 30, 2025, the Supreme Court granted a review of this question.

    Analysis

    CONTRIBUTORY LIABILITY

    Cox argues that an ISP cannot materially contribute to copyright infringement solely by continuing service to known infringers.  Cox claims that contributory liability requires an affirmative action that “aids, fosters, encourages, or facilitates infringement.” Cox asserts that passive action or nonfeasance is not sufficient for a material contribution to infringement. Cox explains that contributory copyright liability is accomplice liability, which is functionally the same as aiding and abetting liability. Cox points to Twitter, Inc. v. Taamneh and Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, where the Supreme Court distinguished affirmative conduct from passive conduct. Cox argues that liability requires affirmative actions intended to further infringement. Cox also claims that the Court in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. heavily emphasized the requirement of affirmative conduct, finding that steps must have been taken to “foster infringement.” Cox posits that affirmative acts include broadcasting a message inciting infringement, selling a product that can only be used to infringe, or forming a business reliant on infringement profits. Cox maintains that the Third Restatement of Torts stipulates that knowledge does not suffice to find liability when the defendant did not assist with infringement. Cox claims that case law supports the principle that merely supplying technology at arm’s length is not a culpable activity.Cox argues that in Twitter the court reasoned that the ISPs do not incur culpability just for giving their services to the public. Cox asserts that in that case, and in Smith & Wesson, the Court did not find that defendants were aiding and abetting because the services and products were being sold on substantially similar terms to everyone. Similarly, Cox explains that it provides services to members of the public on equivalent terms. Cox argues that it has taken no affirmative steps. Cox maintains that it did not profit from infringement, modify its business to facilitate infringement, or encourage infringement in any capacity. Further, Cox highlights the successful program that it developed to curb infringement. Cox also alleges that while the DMCA offers a safe harbor for ISPs, this safe harbor does not set the standard for infringement.  

    Conversely, Sony argues that Cox’s conduct creates copyright infringement liability because knowingly supplying a product to infringers qualifies as a material contribution. Sony relies on Grokster, Inwood Labs., Inc. v. Ives Labs., Inc., and VHT, Inc. v. Zillow Grp., Inc. to illustrate the Court’s longstanding tradition that service providers have contributory liability when they continue supplying products to infringers. Sony points to the Second Restatement of Torts to assert that substantial certainty of consequences is akin to intent. Sony contends that Cox’s liability stems from the fact that it knew specific subscribers were infringing yet continued to provide them with service, not because it provided service to the public. For example, Sony suggests that issuing three or more warnings to subscribers shows Cox knew these subscribers would likely infringe again. Sony asserts that Cox failed to implement a policy terminating repeat infringers as required by DMCA safe harbor, indicating that Cox did not act reasonably in declining to terminate service to infringers. Sony claims Cox’s approach was to avoid terminating infringers, regardless of future infringement uncertainty. Sony argues that no precedent forecloses secondary liability when providers knowingly supply services to infringers. Sony also refutes Cox’s reading of Twitter by arguing that the case was not a copyright case, and the plaintiffs there did not allege that the company refused to terminate users that they knew were using their services to promote terrorism. Sony argues that Smith & Wesson is distinguishable because in that case the manufacturers were not in a direct, continuous relationship with the offenders.Sony explains that the issue in this case is not about whether suppliers must eliminate unidentified bad actors, as in Smith & Wesson, but rather whether an ISP can evade secondary liability once aware of infringement. Sony argues that Cox’s knowledge of ongoing infringement differentiates the case from aiding and abetting precedent where the court found no infringement.

    WILLFULNESS STANDARD

    Cox asserts that an ISP is not “willful” unless it knew its own actions were infringing. Cox argues that the Court must look to common law for the definition of willful because the Copyright Act fails to define the term. Cox contends that common law makes it clear that willful requires knowledge of wrongdoing. Cox argues that someone who does not believe they are violating the law cannot be acting willfully. Cox claims 17 U.S.C. § 504(c) of the Copyright Act shows that “willfully” distinguishes between bad faith and innocent errors. Cox argues § 504(c)’s structure is predicated on the infringer’s state of mind as to its violation. Cox maintains that damages under § 504(c) are based on the defendant’s state of mind. For example, Cox explains that if the defendant was not aware and had no reason to believe that their acts were infringing, the lower end of the damages range drops to $200 per work from $750 per work. Cox also points to § 506 to allege that willful in the criminal context indicates a state of mind and requires more than just violating the prohibited action in the statute. Therefore, Cox argues that precedent does not support the conclusion that ISPs must terminate customers’ access to the internet based on automated infringement allegations.

    Sony argues that Cox’s practice of deleting infringement notices without reading them and continuing service to infringers satisfies “willfulness.” Sony asserts that copyright infringement is a strict-liability tort, which means knowledge of the conduct’s illegality is not required for liability. The relevant question, according to Sony, is whether the defendant knew that the conduct it was facilitating constituted infringement. Sony alleges that under Cox’s interpretation of § 504(c), there is no distinction between people who knew they were assisting infringement and those who did not. Sony argues that facilitating infringing conduct meets the definition of reckless disregard. Sony contends that Cox’s view of § 504(c) penalizes facilitators the same as non-facilitators, which undermines the statute’s damages hierarchy. Sony highlights Cox’s failure to cite case law requiring knowledge of illegality for willfulness when helping another break the law. Sony further argues that the law assumes large corporations can act intelligently and cannot feign ignorance. Sony reasons that Cox avoided arguing complete ignorance to the jury because such a defense was weak given the record illustrating facts to the contrary. Thus, Sony claims that Cox knew the conduct of repeat infringers was infringement, evidenced by the company’s own description of them as “law breaking customers.”

    Discussion

    CONSUMER FAIRNESS AND EQUALITY

    The American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy & Technology (“ACLU et al.”), in support of Cox, argue that ruling in favor of Sony would strongly encourage ISPs to indiscriminately terminate internet access.According to the ACLU et al., this would be particularly harmful for the 20% of Americans who rely on a single ISP for their internet access. Grande Communications Network (“Grande”) posits that the ability for an ISP to cut off households would unfairly affect other individuals on that same network. Grande explains that if the court increased liability for ISPs, service providers would be incentivized to cut off access for entire households. Grande argues that the jobs of remote workers, the ability for children to engage in remote learning, and the health of those with connected medical devices would be unfairly jeopardized.

    The Motion Picture Association (“MPA”), in support of Sony, argues that a ruling in favor of Cox does not necessarily mean that all companies will be able to indiscriminately cut off ISP access. The MPA asserts that Cox could still protect itself from liability as an indirect infringer if it introduced gradual measures, as other companies have done, to notify users who have violated copyright laws that their service will be terminated. MPA argues that this will give users a fair opportunity to change their wrongful actions. The National Center on Sexual Exploitation (“NCOSE”) further contends that the Court’s endorsement of a blanket “no-liability-for-inaction” rule would have sweeping consequences on other parts of the internet.NCOSE argues that one such consequence would be the proliferation of child sexual abuse material because ISPs would not be incentivized to enforce strict rules and could profit from criminal material.

    INNOVATION INCENTIVES

    The Computer & Communications Industry Association (“CCIA”), in support of Cox, argues that if the standard for willfulness is lowered and the bar for contributory liability is expanded it will become too costly to offer innovative technology to the public.CCIA asserts that the deterrent effect is larger than normal in the context of indirect infringers, referencing litigation in the past that has reached as high as a $1 billion jury verdicts.  The Electronic Frontier Foundation and library foundations (“EFF et al.”) posit that damages awards are inconsistent and arbitrary, thus chilling innovation.EFF et al. argue that because these awards are frequently “not required to be calibrated to actual harm or gain,” companies will be unwilling to enter innovative markets because they fear burdensome litigation.

    SoundExchange and artist associations (“SoundExchange et al.”), in support of Sony, counter that stronger copyright protections encourage innovation from the perspective of the authors of creative works. SoundExchange et al. argue that this protection allows artists to rewarded for their efforts. SoundExchange et al. also claim that this innovation benefits the public through the availability of works such as literature, music, and other related artistic endeavors. The Copyright Alliance holds that weaker piracy enforcement will reduce investment in creative production, as creators risk having their work copied without remedy.The Copyright Alliance maintains that online piracy costs the U.S. economy $29.2 billion in lost revenue each year, which will only continue unless this Court rules in Sony’s favor.

    Conclusion

    Authors

    Written by:    Emma Babashak and Audrey Hager

    Edited by:      Ally Fertig

    Additional Resources