Yesterday’s unanimous decision in Cox Communications v. Sony Entertainment surprised no one who observed the argument, which had suggested a bench deeply skeptical of a billion-plus dollar judgment imposed on Cox Communications, an internet service provider, based on the infringing activities of its subscribers. As expected, the opinion for the court brusquely rejected that judgment.

The case presents yet another chapter in the decades-long effort by Sony and other content providers to stamp out the pervasively infringing use of their copyrighted works on the internet (mostly music, movies, and television shows). But Justice Clarence Thomas’ brief opinion made it clear that the content providers are not going to get anywhere by suing internet service providers like Cox.

Thomas starts by granting the basic premise that copyright law allows content providers the exclusive rights to copy and share the works that they own, backed by a substantial damages remedy enforceable in federal court. Turning from the infringers – who of course cannot be found as easily as internet service providers like Cox – Thomas explains that the court has recognized only “two categories of secondary copyright liability,” the term for “liability [of somebody like Cox] for the copyright infringement of another.” The two relevant categories are “vicarious” and “contributory” liability. Because the lower courts found Cox only had contributory liability, this was the sole issue before them.

On that point, Thomas states that the service provider “is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement.” In turn, Thomas explains that the requisite intent exists “only if the party induced the infringement or the provided service is tailored to that infringement” (the latter category covers the Supreme Court’s condemnation of Grokster). Thomas emphasizes that inducement requires a showing that the provider “actively encourages infringement through specific acts.” Similarly, Thomas describes the tailoring inquiry as turning on whether the product is capable of “substantial” or “‘commercially significant’ noninfringing uses.” Here, Thomas refers to the court’s validation of Betamax, a primitive videotaping system that was commonly used for infringement but also was used for the non-infringing practice of time-shifting (recording a program to watch at a later time). For his final point, Thomas points out that the “Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe.”

Having provided that summary of the law, Thomas was able to dispose of Cox’s liability in a few brief paragraphs, pointing out that “Cox neither induced its users’ infringement nor provided a service tailored to infringement.” That is evident because Sony had “no ‘evidence of … marketing … to promote’ infringement” and there was considerable evidence that “Cox repeatedly discouraged infringement.” As for tailoring, “Cox simply provided Internet access, which is used for many purposes other than copyright infringement.”

The only disagreement was a narrow one, as Justice Sonia Sotomayor wrote separately (joined by Justice Ketanji Brown Jackson) holding out the possibility that an ISP might in some contexts (though not this one) be held liable for aiding and abetting if it took affirmative steps to encourage infringement.

The decision can’t really be a surprise, given what happened at the argument. But I expect the importance of the dispute will give it a place, for a while at least, as a canonical statement of the rules for secondary copyright liability. On the liability front, it certainly is going to make it a lot harder to sue ISPs for the things their customers do. And I certainly can imagine it getting play in the disputes to come about errant AI actors – not “intentionally” designed to stray.

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