When your neighbor uses the public road to transport stolen goods, nobody sues the Department of Transportation. We understand intuitively that infrastructure providers aren’t accomplices merely because bad actors use their services. But for years, copyright holders have been trying to rewrite that logic when it comes to the internet, and yesterday the Supreme Court told them, unanimously, that the answer is no. How the Court got there, though, is where things get interesting, and where I think the more persuasive opinion came from two justices who didn’t sign the majority’s name.
In Cox Communications v. Sony Music Entertainment, decided yesterday, the Court reversed a staggering billion-dollar verdict against Cox, an internet service provider accused of contributory copyright infringement because it continued providing service to subscribers who downloaded pirated music. Sony and other labels argued that Cox’s failure to terminate repeat infringers made it complicit in the theft. A jury agreed. The Fourth Circuit largely upheld that finding. But the Supreme Court wasn’t buying it; all nine justices agreed Cox walks free, though they disagreed sharply on why.
Justice Thomas, writing for seven members of the Court, held that contributory liability under copyright law requires intent, not just knowledge, and that intent can only be shown in two ways: by actively inducing infringement, or by offering a service specifically tailored to facilitate it. Cox did neither. It provided general internet access, a service with vast lawful uses, and it even took steps to discourage piracy by sending warnings, suspending accounts, and terminating repeat offenders. As Thomas put it, a company isn’t liable “for merely providing a service to the public with knowledge that it will be used by some to infringe copyrights.” The reasoning echoes Sony Corp. v. Universal City Studios (1984), the Betamax case, which held that selling a device capable of substantial non-infringing uses doesn’t make you liable even if some buyers use it to record copyrighted TV shows. Tools are neutral. It’s how you wield them that matters.
But Justice Sotomayor, joined by Justice Jackson, concurred only in the judgment, and her opinion is the one worth reading carefully. She agreed that Cox wins, but for a narrower and, I would argue, more intellectually honest reason: the music labels simply couldn’t prove that Cox had the requisite intent to be held liable even under a common-law aiding and abetting theory. That’s a fact-specific conclusion, not a sweeping doctrinal rewrite. Her quarrel with the majority is fundamental: Thomas didn’t need to artificially limit the universe of available secondary liability theories to decide this case, and in doing so, he went further than the facts required and further than the law supports. As Sotomayor put it, the majority “without any meaningful explanation, unnecessarily limits secondary liability” in a way that is “inconsistent with both precedent and statute” and, critically, “upends the statutory incentive structure that Congress created” when it enacted the DMCA. In other words, Congress already built a careful framework balancing ISP protection against copyright enforcement. The majority’s sweeping rule throws a wrench into that balance without explanation or necessity.
I find Sotomayor’s approach more satisfying for a simple reason: good judging decides the case in front of you. The facts here were never close; Cox warned, suspended, and terminated infringers, and the labels still couldn’t thread the needle on intent. That’s a losing case on its own terms. There was no need to construct a broad doctrinal wall that forecloses theories of liability that Congress may well have intended to preserve, and that future cases with very different facts may urgently need.
Which brings us to the uncomfortable question the decision leaves hanging in the air: if internet providers aren’t liable and individual infringers are too dispersed or judgment-proof to sue effectively, who compensates creators? The music industry isn’t wrong that piracy still siphons revenue. The Court’s decision protects critical infrastructure from becoming a privatized surveillance apparatus; that much is right and important. But the majority’s unnecessarily broad ruling may have closed doors that a narrower, Sotomayor-style opinion would have left open for another day. The line has been drawn. The question is whether it needed to be drawn quite so far, and whether, the next time a platform is far less innocent than Cox, the Court will wish it had left itself more room to maneuver.
