May 13, 2026
Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. ____ (2026) (Thomas, J.)
Response by Christopher A. Cotropia & James Gibson
Geo. Wash. L. Rev. On the Docket (Oct. Term 2025)
Slip Opinion | SCOTUSblog
Getting Online Copyright Right: Cox Communications v. Sony Music Entertainment
The Supreme Court’s decision in Cox Communications, Inc. v. Sony Music Entertainment1 is easy to criticize. The majority opinion mischaracterizes precedent, mangles the ordinary meaning of “intent,” and introduces potential uncertainty into secondary liability across intellectual property regimes. Justice Sotomayor’s concurrence in the judgment highlights some of these concerns,2 and future litigants will have much about which to argue.
But critics should not miss the forest for the trees. On balance, as Supreme Court intellectual property decisions go, Cox is a good one. It cleaned up a genuinely confused body of lower court law, articulated a standard that is relatively workable for future parties, and reached results that are substantively correct—or at least defensible. Here’s why.
A Workable Standard for Contributory Liability
The Court’s central holding is that contributory liability in copyright attaches only in two circumstances: when a defendant “affirmatively ‘induc[ed]’ the infringement” or when the defendant’s service was “tailored to infringement.”3 This standard draws directly on Sony Corp. of America v. Universal City Studios4 and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,5 the two landmark Supreme Court cases that had long governed—or purported to govern—this area of law.
The practical significance of this standard for internet service providers (“ISPs”) and other conduits is immediate and important. For years, lower courts had been cobbling together theories that held conduits like Cox liable for passively transmitting content that third parties used to infringe.6 These theories had no coherent basis: They conflated safe-harbor provisions from the Digital Millennium Copyright Act (“DMCA”) with common law liability concepts in ways Congress never contemplated and that no prior court had sanctioned.7
In Cox, the Court put an end to this. Under its ruling, an ISP that does nothing more than transmit data from one point to another cannot be made contributorily liable for its customers’ infringement without proof that it affirmatively induced that infringement.8 Internet connectivity is not a service tailored to infringement; it supports an almost infinite range of uses, the vast majority of which are entirely legitimate. This is the right result. The Sony Court drew this line more than forty years ago: Mere provision of a technology with substantial non-infringing uses does not make the provider liable for how others choose to use it.9 An ISP that passively transmits content is no more responsible for its customers’ choices than Sony was for what purchasers of its VCR chose to record.
Justice Sotomayor objected that under the majority’s rule, an ISP would face no liability even if a customer walked in and announced an intent to pirate.10 That is true—but it is also true of the local power company, the telephone company, and the electronics store selling ethernet cables. The Sony rule has always meant that providing dual-use technologies does not make you an accessory to their misuse, and the line would be impossible to administer otherwise.
The DMCA Is Not a Dead Letter
A recurring objection to Cox is that its common law contributory liability standard differs from the DMCA’s safe harbors, thereby undermining the statute. This concern misunderstands the DMCA’s purpose.
The DMCA was not designed to define liability.11 It was designed to create breathing room for liability standards to develop through case law at a time when the nascent online copyright doctrine was genuinely chaotic.12 Through the DMCA, Congress responded to this chaos not by codifying liability rules but by establishing a floor: Providers satisfying the safe-harbor conditions would be protected while providers falling outside those harbors would have their liability determined by common law. Congress made this explicit in the statute, stating that failing to qualify for a safe harbor “shall not bear adversely upon . . . a defense by the service provider that the service provider’s conduct is not infringing.”13 The DMCA always contemplated that such common law defenses would exist independently of the safe harbors. Cox gives those defenses definite content.
Open Questions for Platforms and Search Engines
The decision’s implications are clearest for conduits, but Cox leaves important questions open for other categories of service providers. For content-hosting platforms like YouTube, the majority’s emphasis on intent as the touchstone for contributory liability creates some uncertainty. Under the pre-Cox case law, a platform that received notice of specific infringing content and failed to act faced liability—a standard that dovetailed neatly with the DMCA’s knowledge-based safe harbor.14 Cox’s substitution of “intent” for “knowledge” invites defendants to argue that they lacked the requisite mental state even after receiving specific notice.15
For search engines and information location tools, Cox may quietly vindicate a position that some courts and commentators had long suspected: that linking to infringing material is not itself an act of infringement, absent affirmative inducement.16 If knowingly linking to infringing content does not constitute “intent” to promote infringement, then the standard for search engine liability becomes essentially the same as that for conduits. The DMCA’s safe harbor for information location tools may have been a solution to a problem that, under the common law, never quite existed.17
The Verdict
Taken all together, Cox deserves real credit. It cleared away lower court doctrine that lacked any coherent foundation, articulated a standard that practitioners and future courts can apply, and reached outcomes that are—at least as for conduits and the DMCA—substantively correct. Its implications for hosting platforms and search engines will require further development. But those are criticisms of execution, not of direction. The Supreme Court is pointing lower courts in the right direction, and that’s a welcome corrective for copyright law.
Christopher A. Cotropia is the David Weaver Research Professor of Law at George Washington University Law School. James Gibson is the Sesquicentennial Professor of Law at the University of Richmond School of Law. A more in-depth initial analysis of the Cox v. Sony decision by the authors is forthcoming in volume 24 of the Northwestern Journal of Technology and Intellectual Property.
Recommended Citation
Christopher A. Cotropia & James Gibson, Getting Online Copyright Right: Cox Communications v. Sony Music Entertainment, Geo. Wash. L. Rev. On the Docket (May 13, 2026), https://www.gwlr.org/getting-online-copyright-right/.
References
[1] 146 S. Ct. 959 (2026).
[2] Id. at 972 (Sotomayor, J., concurring in the judgment).
[3] Id. at 964 (majority opinion) (alteration in original).
[4] 464 U.S. 417 (1984).
[5] 545 U.S. 913 (2005).
[6] See, e.g., UMG Recordings, Inc. v. Grande Commc’ns Networks, LLC, 118 F.4th 697, 714–16 (5th Cir. 2024); BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 149 F. Supp. 3d 634, 662 (E.D. Va. 2015), aff’d in part, rev’d in part, 881 F.3d 293 (4th Cir. 2018).
[7] Christopher Cotropia & James Gibson, Convergence and Conflation in Online Copyright, 105 Iowa L. Rev. 1027, 1069–72 (2020).
[8] Cox, 146 S. Ct. at 964, 968.
[9] Sony, 464 U.S. at 456.
[10] Cox, 146 S. Ct. at 972 (Sotomayor, J., concurring in the judgment).
[11] Cotropia & Gibson, supra note 7, at 1047–49.
[12] Examples of cases causing the chaos include Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp. 543, 551–54 (N.D. Tex. 1997), aff’d, 168 F.3d 486 (5th Cir. 1999), and Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552, 1554–59 (M.D. Fla. 1993), which both indicated that online platforms could be liable for the copyright violations of their users without any knowledge thereof.
[13] 17 U.S.C. § 512(j).
[14] See 17 U.S.C. § 512(c).
[15] Cox, 146 S. Ct. at 969.
[16] See, e.g., Flava Works, Inc. v. Gunter, 689 F.3d 754, 758–59 (7th Cir. 2012); 4 Nimmer on Copyright § 12B.05[A][2] (2026).
[17] 17 U.S.C. § 512(d).
