High Court Should’ve Done More Than Pick Winner in Copyright Case

The US Supreme Court’s opinion in Cox Communications, Inc. v. Sony Music Entertainment takes a broad-brush approach to contributory copyright infringement that leaves as many questions as it answers.

Sony Music Entertainment and other music copyright owners had sued Cox on a theory of secondary liability, claiming in part that Cox had contributed to its customers’ infringement by failing to terminate their accounts after they were identified as repeat infringers.

But the same story could be told about other service providers, such as the electric company, that also make infringement possible. So how should a court aware of secondary liability’s roots in the common law think about contributory infringement in a technological age?

Hundreds of lower courts had relied on the US Court of Appeals for the Second Circuit’s 1971 opinion in Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., which held that contributory infringement occurs when one “induces, causes or materially contributes to the infringing conduct of another” with “knowledge of the infringing activity.”

The Supreme Court, for its part, had addressed contributory infringement in two major cases.

In Sony Corp. of America v. Universal City Studios, Inc. in 1984, it held that selling copying equipment, such as video tape recorders, doesn’t constitute contributory infringement if the product is “capable of substantial noninfringing uses.” In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. in 2005, the high court referred to “common law principles” in holding that a party engages in contributory infringement by “intentionally inducing or encouraging direct infringement.”

Both cases acknowledged Gershwin’s existence. And the Fourth Circuit, in upholding the jury’s finding below of Cox’s contributory infringement while tossing out the $1 billion damage award to Sony, cited Gershwin as well.

Gershwin’s language is difficult to reconcile with the common-law tort principles the court referenced in Grokster. But that language is part of decades’ worth of judicial consideration, so one would expect that an opinion on contributory copyright infringement would at least mention it.

But the Supreme Court’s opinion, written by Justice Clarence Thomas and joined by six other members of the Court, doesn’t cite Gershwin or any lower court opinion (besides the Fourth Circuit opinion under review) in its four-page discussion section. Instead, the Court concluded that the rule is simple: Sony and Grokster are the only two relevant cases.

Thus, a service provider can be liable for its customers’ infringement only if it intended its service to be used for infringement. And intent can be shown only in one of two ways: if the party induced the infringement, meaning that it “actively encourage[d] infringement through specific acts” or if the service “is tailored to infringement,” meaning that it is “not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.”

Because Cox didn’t encourage its customers to commit infringement, and its internet service wasn’t tailored to infringement, Cox couldn’t be held liable under a theory of contributory infringement. This was the right result on the facts, and every member of the Court, including Justices Sonia Sotomayor and Ketanji Brown Jackson, who concurred only in the judgment, agreed on that point. If contributory liability is to be derived from common law tort principles, the defendant’s intent is the right focus.

But it’s striking that the opinion doesn’t engage with decades of lower court case law on contributory infringement. The entire analysis seems to be “the holding in Grokster plus the holding in Sony,” with a new phrase—"tailored to infringement"—layered on top.

The opinion doesn’t explain how those two cases relate to one another or whether they represent two distinct theories of contributory infringement. It doesn’t explain how either part of its test derives from the common law or relates to intent. It doesn’t say whether its holding, which focuses on “services,” applies equally to goods or to other kinds of service providers.

It also doesn’t meaningfully address the effect of its holding on the Digital Millenium Copyright Act’s safe harbor provisions in Section 512. (The opinion errs by twice suggesting that the only requirement to benefit from the safe harbor is to terminate the accounts of repeat infringers, and errs a third time by citing the wrong statutory section.) It doesn’t acknowledge whether the opinion has sub silentio buried Gershwin, leaving lower courts to decide whether it will be error to cite Gershwin going forward.

In short, the Supreme Court’s opinion takes a “we said what we said” approach to judging, rather than the approach Justice Sotomayor advocates for in her concurrence: an analysis that explains its rationale so as to persuade its readers that it’s not “inconsistent with both precedent and statute.”

We have seen this divide before in another intellectual property case —the 2024 trademark law case of Vidal v. Elster. There, the majority opinion—also authored by Justice Thomas—advanced a holding based on the “history and tradition” represented by past cases without applying the principles arising from those cases, while Justice Sotomayor and others, concurring in the judgment, urged instead a framework focused on doctrine and precedent.

Some will justly praise the opinion in Cox Communications for its result; others will see its rule as admirable in its simplicity. But appellate opinions, and particularly opinions from the Supreme Court, aren’t simply about declaring a winner. They are acts of asynchronous conversations with past precedent and future decisions.

They should, ideally, not just state a rule but also explain its underlying rationale, anticipate its implications, and provide guidance on its application by lower courts. A rule may be simply stated in theory, but its simplicity may belie the complexity of its operation in practice. The Court’s holding in Cox Communications may turn out to be such a case.

The case is Cox Communications, Inc. v. Sony Music Entertainment, U.S., No. 24-171, 3/25/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Laura A. Heymann teaches and writes on copyright law and trademark law, among other topics, at William & Mary Law School and co-wrote an amicus brief in this case.

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