Supreme Court Grapples With ISP Copyright Dispute

WASHINGTON, Dec. 1, 2025 – Supreme Court justices appeared reluctant Monday to agree with record labels  that broadband providers can face liability for not cutting the connections of repeat pirates. 

At the same time, justices said they worried affirming Cox’s argument would leave too little accountability for ISPs.

The high court heard oral arguments Monday in Cox Communications v. Sony Music Entertainment, in which Cox argued that, as long as the company don’t specifically encourage users to infringe, ISPs should face no liability at all for keeping repeat offenders online. 

Led by Sony, the labels have maintained broadband providers should have to cut off connections at a certain point, else they would be liable for infringement that the company knew was likely to happen when they continued selling service to habitual pirates.

Justice Elana Kagan said recent Supreme Court cases had three principles for establishing secondary liability: Wanting infringement to occur, taking action rather than not acting, and treating offending customers differently.

“And if you look at those three things, you fail on all of them,” she said to Paul Clement, the former U.S. Solicitor General representing Sony. “And that is because those three things are kind of inconsistent with the intent standard you just laid out.”

Justice Brett Kavanaugh said he agreed: “I don’t see your formulation of intent in our copyright cases.” 

Case dates from 2018 lawsuit

The case stems from a 2018 lawsuit by the record labels, which sued Cox for not taking subscribers offline fast enough after being notified they repeatedly pirated songs. About 57,000 Cox subscribers are alleged to have pirated about 10,000 works in 2013 and 2014, and Cox received at least three piracy notices for each. 

A Virginia jury hit the ISP with a $1 billion penalty, which the Fourth Circuit Court of Appeals later threw out.

That decision said Cox’s liability was lowered because it didn't profit from the actual infringement, but maintained the company had some level of responsibility. 

Both sides appealed, with Cox seeking no liability at all and Sony looking to have the fine reinstated. The government has taken Cox’s side and participated in the arguments Monday.

Kavanaugh and Justice Neil Gorsuch said that Congress’s silence on the liability issue at hand could be a reason not to expand it as Sony was asking.

Justice Samuel Alito said he worried that, as Cox and the United States government have argued, siding with Sony could lead major broadband providers to take regional ISPs and universities offline in a bid to avoid massive penalties.

Clement argued that the safe harbor provision of the Digital Millenium Copyright Act, which exempts ISPs from liability for online copyright if they take reasonable steps to curb infringement, would probably allow users like that to be kept online if ISPs simply reached out and tried to find a solution.

Cox’s side

Joshua Rosenkranz, the attorney representing Cox, for his part argued the safe harbor provision of the DMCA was now pointless, since, in Cox’s telling, ISPs can only be liable if they actively encourage infringement.

Some justices didn’t like that idea very much.

“What incentive would you have to do anything if you won?” asked Justice Amy Coney Barrett. “Don’t you do these notices [to infringers] in an effort to get the safe harbor, and aren’t you sending these notices to avoid liability? You would have no liability risk, if you win, going forward.”

Rosenkranz was adamant, though, that an ISP could basically never be liable for not turning off a repeat infringer’s connection. That would be the case, he said in response to justices’ hypotheticals, even if the provider sold service to a prospective customer who said they would use the connection to pirate music constantly, or if the provider received vast numbers of infringement notices about a subscriber over many months.

The government agreed, U.S. Deputy Solicitor General Malcom Stewart said.

“Aren’t you worried that a ruling by us, as broad as you’re stating it, would be a disincentive for ISP providers to provide any aid to copyright holders? Why would they bother?” asked Justice Sonia Sotomayor.

Stewart responded, “I would agree that not much economic incentive would be left, I’m simply questioning whether that’s a bad thing.” 

Justice Kentanji Brown Jackson said that because it included a safe harbor in the DMCA, Congress probably thought ISPs could be liable in some cases, else they wouldn’t need a safe harbor.

“So if we now interpret this not to allow for liability, I’m a little worried we’re undermining Congress's intent,” she said.

Several consumer advocacy groups have also sided with Cox, telling justices in briefs that liability in cases like this could cause ISPs to quickly shut off essential services to avoid massive fines.

Initial reactions

“To my ears, though both sides were grilled, the Court appeared reluctant to risk the cut-off of internet service to large groups of users as the [U.S. government] argued would be likely if Sony's liability standard, nowhere in statute, were adopted,” Adam Eisgrau, head of copyright policy for big tech trade group Chamber of Progress, posted on X after the arguments. The tech industry has also backed Cox.

Bruce Boyden, an associate professor of copyright law at Marquette University, said in a blog post that justices probably wanted to avoid subjecting ISPs to huge fines for not terminating connections, but also to leave some liability for broadband providers that know about and ignore repeated piracy.

“The court wants a clear rule that preserves liability for (at least) egregious acts of assisting infringement in future cases,” he wrote. “Bottom line, I predict some sort of remand to the Fourth Circuit, and some sort of shake-up of contributory infringement doctrine, but just how extensive it is (or whether it even happens) is up in the air.”

A Cox spokesperson said in an email to Broadband Breakfast that “As we have said throughout, internet service providers should not be held liable for the infringement of few customers when the internet provider did not aid, foster, encourage or profit from the alleged conduct. Today’s argument showed how the lower court ruling, if untouched, could jeopardize internet access for all Americans.”

“We are being put to two extremes here,” Sotomayor said near the end of the arguments. “How do we announce a rule that deals with those two extremes?”