U.S. Supreme Court To Review Broadband Providers’ Liability For Subscribers’ Copyright Infringements
June 30, 2025 – The U.S. Supreme Court has granted a Petition For A Writ Of Certiorari in Cox Communications, Inc. v. Sony Music Entertainment (Docket No. 24-171), a case involving the standard for holding internet service providers (ISPs) secondarily liable for copyright infringement committed by their broadband subscribers. In the original case, a group of record companies and music publishers (Plaintiffs) sued ISP Cox Communications for copyright infringement. Subscribers of Cox’s broadband service infringed Plaintiffs’ copyrights by downloading or distributing songs over the internet without permission. Rather than sue Cox’s subscribers, the Plaintiffs sued Cox using two theories of secondary liability: vicarious and contributory copyright infringement. A jury found Cox liable for both willful contributory and vicarious infringement of 10,017 copyrighted works owned by Plaintiff and awarded $1 billion in statutory damages. Cox appealed. The U.S. Court Of Appeals For The Fourth Circuit affirmed the jury’s finding of willful contributory infringement. However, the Fourth Circuit reversed the vicarious liability verdict and remanded for a new trial on damages because it found that Cox did not profit from its subscribers’ acts of infringement, a legal prerequisite for vicarious liability.
Cox then filed a Petition For A Writ Of Certiorari requesting U.S. Supreme Court review of the Fourth Circuit’s decision. Cox wants SCOTUS to address the question of who is responsible for online copyright infringement because the music industry is seeking to hold every ISP in the country liable for copyright infringement by their subscribers.
Under the Digital Millennium Copyright Act (DMCA), ISPs can avail themselves of a safe harbor to limit their liability for claims of copyright infringement. To qualify, an ISP must adopt and reasonably implement a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the ISP’s system or network who are “repeat infringers.” While the phrase “reasonably implement” is not defined in the statute, courts have interpreted the phrase to have two separate elements: (1) whether a service provider implemented its policy; and (2) whether that implementation was reasonable.
In the case being appealed, Cox was stripped of its DMCA safe harbor defense for failing to reasonably implement its policy by not terminating the service of alleged repeat infringers under appropriate circumstances. As Cox points out, ISPs have no way of verifying whether a bot-generated notice of infringement for a particular IP address is accurate, and no one can reliably identify the actual individual who used a particular internet connection for an illegal download. By granting Cox’s petition, SCOTUS will address the following two questions presented:
Did the Fourth Circuit err 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? (This Court has held that a business commits contributory copyright infringement when it distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps to foster infringement.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. 545 U.S. 913, 919 (2005). The courts of appeals have split three ways over the scope of that ruling, developing differing standards for when it is appropriate to hold an online service provider secondarily liable for copyright infringement committed by users.)
Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c)? (Generally, a defendant cannot be held liable as a willful violator of the law—and subject to increased penalties—without proof that it knew or recklessly disregarded a high risk that its own conduct was illegal. In conflict with the Eighth Circuit, the Fourth Circuit upheld an instruction allowing the jury to find willfulness if Cox knew its subscribers’ conduct was illegal—without proof Cox knew its own conduct in not terminating them was illegal.)
