Supreme Court rules internet provider not liable for users’ music piracy
A fundamental issue that touches every corner of the digital world
Insomnia sufferers are frequently advised to study copyright law, which nearly always offers a cure. It’s one of those topics that appears sort of sexy and flashy at first glance but quickly proves to produce symptoms of somnolence in all but the most motivated reader.
And yet, hardly any topic is more central to the question of how digital communications can be incorporated into modern life, which depends on copyrighted entertainment, education, information and — oops — software that powers the “theft” of digital work product that so upsets its authors/owners.
The question of how much theft is too much will probably never be settled but the most recent to have a go at it is the U.S. Supreme Court, which today ruled unanimously — yes, unanimously — that Cox Communications can’t be held liable for copyright infringement committed by its subscribers. The case before the court was Cox Communications Inc. v. Sony Music Entertainment.
That amounts to a major victory for internet service providers like Cox in a closely watched legal battle with the music industry.
The decision rejected a billion-dollar damages claim brought by major music labels and publishers who argued that Cox had failed to terminate the accounts of customers who were repeatedly flagged for illegally downloading and distributing copyrighted songs.
The usual plea of the internet industry — which feverishly copyrights its products and processes and harshly prosecutes anyone who dares filch them — is that it should not be responsible for the transgressions of its users. And surprisingly, the Court’s nine justices rather enthusiastically bought that argument, though not all for the same reasons. We’ll leave the legal fine points to others.
Intention is elemental
Writing for the court, Justice Clarence Thomas said an internet provider is liable for a customer’s piracy only if it “intended that the provided service be used for infringement” — for instance, by actively encouraging such activity. Simply knowing that some customers use a service to infringe copyrights is not enough to expose a provider to legal liability, the court held.
“Merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights” does not make a company legally responsible, Thomas wrote.
Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, concurred in the outcome but wrote separately to note she reached that conclusion through different legal reasoning.
The music industry’s trade association, The Recording Industry Association of America, had sued Cox in 2018, arguing the Virginia-based cable and internet company had ignored repeated notices identifying subscribers who were pirating music and failed to take adequate steps to cut off their service. A lower court sided with the labels and awarded more than $1 billion in damages — a sum that now stands vacated following Wednesday’s ruling.
The case turned on the legal doctrine of “secondary liability,” which holds that parties can be held responsible not only for their own infringement but for knowingly enabling someone else’s. Courts have applied this principle broadly in the digital era, but its precise contours — particularly as applied to internet infrastructure companies — had remained unsettled until today.
Groping for an answer
The justices have addressed related questions before, though not always consistently. In 2005, the court unanimously ruled that Grokster, a file-sharing service, could be held liable for the copyright violations of its users because the company had actively marketed its platform as a tool for piracy.
Today’s ruling drew a sharp distinction between that conduct and what Cox was accused of: failing to police its network aggressively enough, rather than building a business around infringement.
More recently, in a pair of 2023 decisions unrelated to copyright, the court declined to hold social media companies responsible for harmful content posted by users, though it stopped short of resolving the broader question of platform liability.
The current ruling does not foreclose all copyright claims against internet providers. The opinion leaves open the possibility of liability in cases where a provider crosses the line from passive inaction into active facilitation of piracy. But it sets a high bar, requiring plaintiffs to show intent — not merely awareness — on the part of the provider.
Striking a blow for free speech?
That distinction drew praise from free speech advocates who had filed briefs urging the court to side with Cox. Groups including digital rights organizations had warned that a ruling against the provider could have sweeping consequences beyond copyright law, potentially exposing bookstores, libraries, social media platforms and other intermediaries to crippling lawsuits based on the conduct of people who use their services.
“If internet providers face existential liability every time a subscriber streams a pirated song or downloads a movie, the result is not a healthier creative economy — it’s an internet built around surveillance and preemptive censorship,” one brief argued.
The music industry, however, contended that the ruling leaves rights holders with few practical tools to combat online piracy at scale. Labels have long argued that repeat infringers continue to abuse broadband connections with impunity because providers face little legal pressure to act. Under the court’s ruling, companies can now point to Wednesday’s decision as a shield against damages even when they receive thousands of infringement notices and take minimal action.
Cox, which serves millions of internet subscribers across the United States, had argued throughout the litigation that it was not a piracy operation and should not be penalized for the independent decisions of its customers. The company maintained that it does have a policy for addressing repeat infringers but that disconnecting customers is a drastic step that should not be legally compelled by private litigation.
As is so often the case, Cox’s interests lie on both sides of the dispute. Though it is the third-largest cable company and internet provider in the U.S., it also owns radio and television stations and newspapers, all producing copyrighted material which Cox no doubt would vigorously defend if necessary.
It’s worth noting for those not subjected to law school that today’s ruling, which takes effect immediately, was handed down by the United States Supreme Court, the highest court in the land and the venue of last resort. The long-ranging dispute now becomes what is termed “settled law”.
It’s among the most significant copyright decisions in years, clarifying the boundaries of liability for the companies that form the backbone of internet access in America.