Supreme Court Narrows Contributory Copyright Liability for ISPs

Summary

The U.S. Supreme Court recently decided in Cox Communications, Inc. v. Sony that an internet service provider (ISP) is contributorily liable for its subscribers’ copyright infringement only if the ISP intended its service to be used for infringement. Intent can only be shown by: (1) the provider’s deliberate inducement of the infringement; or (2) provision of a service “tailored to infringement,” meaning that the service is not capable of being substantially used on a commercial level for noninfringing purposes. An ISP’s mere knowledge of infringement, coupled with its alleged failure to terminate an infringing subscriber’s service, is not sufficient to find the ISP liable for contributing to the copyright infringement.

Applying this standard, the Court found that Cox did not induce its subscribers to commit infringement. Cox did not promote or encourage the infringing activity, and it issued warnings/suspensions/terminations to alleged infringers. Moreover, Cox’s general internet access service is plainly capable of substantial lawful uses. The Court also rejected the argument that the safe harbor available for ISPs under the Digital Millenium Copyright Act (DMCA) implies liability for ISPs that continue to serve known infringers. The Court found that the safe harbor creates defenses for ISPs and expressly states that failure to qualify for the safe harbor does not undermine a defense that the provider’s conduct is not infringing.

Justices Sotomayor and Jackson concurred with the majority regarding Cox’s liability but warned that the decision unnecessarily limits secondary liability. They suggested other common-law theories (for example, aiding and abetting) could remain available to copyright owners, though in the present case there was no evidence that Cox intended to aid or abet copyright infringement.

Action Items

In the wake of the Cox decision, ISPs and platform providers should consider the following:

• • Infringement Response Practices: Reassess infringement-response programs to ensure that nothing could be construed as an intent to induce infringement; maintain documentation showing non-promotion and lawful-use orientation.
• • DMCA Compliance: Continue to maintain and reasonably implement repeat-infringer policies for safe-harbor positioning. Ensure up-to-date designated agent contact information is provided to the Copyright Office for the DMCA Designated Agent Directory and that the same contact information is posted on public-facing websites.
• • Contracting and Policies: Review subscriber terms, escalation workflows, and internal communications/training to reduce inducement risk and preserve defensibility in litigation.

If you have questions about compliance with the DMCA, applicability of the safe harbor or copyright compliance generally, contact Rebecca Jacobs Goldman in our Privacy, Data Protection, Cybersecurity and Broadband, Spectrum, and Communications Infrastructure Practice Groups.