The U.S. Supreme Court grappled on Monday with a bid by Cox Communications to avoid financial liability in a major music copyright lawsuit by record labels that accused the internet service provider of enabling its customers to pirate thousands of songs.
The justices appeared skeptical of Cox’s assertion that its mere awareness of user piracy could not justify holding it liable for copyright infringement. They also questioned whether holding Cox liable for failing to cut off infringers could impact a wide range of innocent internet users.
“We are being put to two extremes here,” Justice Sonia Sotomayor told Paul Clement, the lawyer representing the labels. “How do we announce a rule that deals with those two extremes?”
Cox has appealed a lower court’s decision to order a new trial to determine how much the Atlanta-based company owes Sony Music, Warner Music Group, Universal Music Group and other labels for contributory copyright infringement. Cox said the retrial could lead to a verdict against it of as much as $1.5 billion.
Cox, the largest unit of privately owned Cox Enterprises, has argued it should not be held responsible for piracy by its users of music owned by the labels. Cox has said a ruling favoring labels could force it to terminate internet access for “entire households, coffee shops, hospitals, universities” and others “merely because some unidentified person was previously alleged to have used the connection to infringe.”
‘LAISSEZ-FAIRE ATTITUDE’
The justices wrestled with the issue of how to protect copyright interests without harming innocent users who may be affected if copyright enforcement by internet service providers, or ISPs, like Cox becomes too broad.
Some justices appeared to agree with the labels that Cox was particularly lax in addressing user infringement.
“Your client’s sort of laissez-faire attitude towards the respondents is probably what got the jury upset,” Sotomayor told Cox attorney Joshua Rosenkranz.
A jury in Alexandria, Virginia, found in 2019 that Cox owed the labels $1 billion for its secondary liability for infringement by its customers of more than 10,000 copyrights. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out the damages award in 2024 after reversing the jury’s finding on one form of secondary liability.
ISPs are generally not liable for user infringement under U.S. law if they take reasonable preventive measures. But the labels accused Cox of failing to address thousands of infringement notices and failing to cut off internet access for repeat infringers or take other piracy-deterrent measures.
The jury, in awarding $1 billion to the record labels, found Cox liable both for contributory infringement and vicarious infringement, two forms of secondary copyright infringement liability. The 4th Circuit ordered a retrial on the award’s size after affirming the jury’s finding of contributory infringement but reversing its finding of vicarious liability.
Contributory infringement involves holding parties liable for someone else’s infringement because they knew about it and contributed to it. Vicarious infringement involves holding parties liable for someone else’s infringement because they had the ability to control the infringement and benefited financially from it.
A GUN ANALOGY
The justices questioned Cox’s argument that it could not be held responsible for contributory infringement when it knew that only some users infringed and did not act affirmatively to enable it.
“If I’m a gun dealer, and I’m selling to someone who says to me, ‘I want to kill my wife with this gun,’ I think the common law would say you knew what he was going to do with the gun, you joined in,” Sotomayor told Rosenkranz. “Why isn’t your continuing to provide internet service the same?”
“What incentive would you have to do anything if you won?” Justice Amy Coney Barrett asked Rosenkranz. “You would have no liability risk, right, if you win going forward?”
The justices questioned the labels on the breadth of their contributory liability argument. Clement said an ISP must know that a user is “substantially certain” to infringe to be responsible for failing to act.
“What would limit your approach?” Justice Clarence Thomas asked Clement.
A lawyer for President Donald Trump’s administration argued in support of Cox.
Justice Samuel Alito said the administration has told the court a ruling favoring the labels would threaten universal internet access, noting a hypothetical situation in which an ISP shuts down a university’s internet account shared by thousands of students and staff members based on one user’s infringement.
“I really don’t see how your position works in that context,” Alito told Clement.
Justice Neil Gorsuch suggested that a lack of congressional action to define contributory liability could be a “flag of caution in expanding it too broadly.”
Alphabet’s Google, Amazon, Microsoft and other internet-focused tech companies supported Cox in the case. Music, film and book industry trade groups backed the labels.
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