Background
Music piracy had become a significant issue for the music industry with the introduction of the Internet. Initial attempts to sue services that enabled copyright infringement such as Napster were successful, but as new methods of anonynous sharing were introduced by the mid-2010s, the primary means that music publishers have fought such piracy is to directly sue the users, rather than the internet service provider (ISPs) that provides the user's service. This can be difficult due to the anonymity brought by the Internet Protocol (IP) system, particularly with peer-to-peer sharing clients, as well as the large number of users that the labels claim were illegally sharing music. [1] To help fight such copyright infringement at this scale, a clause of the Digital Millennium Copyright Act (DMCA) requires that ISPs first warn and then terminate the service of customers found to be repeat infringes, in exchange for reducing their liability from copyright infringement lawsuits. [2] Music publishers have used the DMCA to press ISPs to take action when they find such repeat infringers. [3]
Most of the major ISPs voluntarily joined the Copyright Alert System to allow music distributors to notify the ISP when they discovered a repeat infringer, allowing the ISP then to take action. Cox Communications refused to join this system, but did have a takedown policy in place by 2014, but was sued by BMG Rights Management and Round Hill Music, with the publishers claiming their policy was lax and that Cox did not enforce it strongly enough, as it allowed repeat infringers that had their service terminated to reply at a later date. [3] The case was decided against Cox in 2015, with the jury ruling Cox liable for the users' piracy and requiring them to pay $25 million. [4] However, Cox appealed to the Fourth Circuit, where the judges in 2018 affirmed that Cox's repeat infringer policy failed to meet the standards expected by the DMCA, but overturned the verdict due to faulty jury instructions, remanding the case back to lower court. Cox, BMG, and Round Hill settled for an undisclosed sum before the case was reheard in lower court. [5] [6]
Other music publishers had been watching the BMG case, anticipating that if the verdict was upheld, they would also seek damages from Cox. [5] Prior to the BMG settlement in 2018, Sony Music, EMI, Warner Music Group, and Universal Music led several other music labels in suing Cox for damages over $1 billion, accusing the ISP of ignoring thousands of warnings on repeat infringers and liable for the piracy of over 10,000 songs. The jury at the Eastern District of Virginia found Cox liable and willful of copyright infringement by its customers, and awarded the music labels $1 billion in damages. [7] [8]
Cox appealed to the Fourth Circuit. The Electronic Frontier Foundation, Center for Democracy and Technology, American Library Association, Association of College and Research Libraries and Public Knowledge filed a amicus curiae brief urging the 4th Circuit to overturn the districts decision. [9]
In February 2024, the Fourth Circuit overturned the verdict, affirming that Cox was liable for willful contributory infringement due to its lax takedown policies, but not for vicarious infringement, where the entity knowingly profits from the copyright infringement of its users that had been the basis of the music label's monetary damages. The Fourth Circuit vacated the $1 billion award and remanded the case to be heard by a second jury to reassess the damages. [10] [11] [12]
Supreme Court
Cox Communications petitioned to the Supreme Court to challenge the Fourth Circuit's decision that found them liable for contributory infringement, asserting that as an ISP, they are not the "Internet police", and should not be required to punish users based on automatic takedown notices targetting a single IP address. The music labels also separately petitioned the court, urging the Supreme Court to also review the decision related to vicarious infringement by Cox, as the Fourth's decision created a circuit split on how vicarious infringement is judged. The Supreme Court of the United States granted review of Cox's petition by June 2025 but denied the music label's petition, limiting the case to the questions raised by Cox Communications on contributory infringement, and will not review the vicarious infringement question from the music labels. [12] [1]
Amicus briefs supporting Cox include free speech groups like the American Civil Liberties Union, as well as major technology companies like Google and X Corp., while the music label's position is based by groups like the Motion Picture Association. [1] Cox's position was also supported by the U.S. Solicitor General's office, arguing the labels had not met the standard to demonstrate Cox was liable for copyright infringement. [13]
Oral arguments were held December 1, 2025. [1] Court journalists said that the justices from both ideologies were skeptical of arguments from both Cox and the music labels, with Sonia Sotomayor saying "We are being put to two extremes here, how do we announce a rule that deals with those two extremes?" [14] The justices questioned if Cox's policy was too laissez-faire and caused them to be implicated by the jury, while they also argued that some of the proposed remedies from the music labels were too strict, such as slowing Internet speeds at colleges due to the number of repeat infringers found there, of which Samuel Alito said "I just don't see how it's workable at all". [15] [14] Journalists did say the questioning appeared to favor Cox, following from the court's previous rulings in 2023 in Gonzalez v. Google and Twitter v. Taamneh which favored with liability protection for ISPs from the actions of their users. [2] Neil Gorsuch said the court would need to use a "flag of caution in expanding [the definition of contributory liability] too broadly" due to lack of congressional action. [14]
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