Tricky Business – Using A Law You Flout To Avoid Liability

Music piracy poses a large threat to artists' copyrights, depriving the music industry of billions of dollars annually. To combat this, music producers often seek out the assistance of Internet Service Providers ("ISPs") in stopping copyright infringement by the ISPs' customers. For ISPs that cooperate, the Digital Millennium Copyright Act ("DMCA") provides safe harbor that limits their liability for copyright infringement committed by their customers. That safe harbor, however, is not absolute. Recently, the Supreme Court in Cox Commc'ns v. Sony Music Ent. was asked to confirm that an executive's open defiance of the DMCA's provisions obliterated any safe harbor protection and to affirm the jury's verdict finding the ISP liable for contributory copyright infringement based on its customers' piracy.

Under the DMCA, a copyright holder can send a takedown notice to an ISP that identifies a protected work and provide the contact details of the customer who is allegedly infringing. To qualify for the safe harbor, the ISP must act "expeditiously" to remove the infringing material and promptly notify the subscriber that his conduct was infringing. Also, ISPs must adopt and implement a policy for terminating repeat infringers when appropriate.

Here, agents on behalf of various music producers including Sony, Warner, and Universal, sent Cox roughly 5.8 million takedown notices over a two-year period. These subscribers were, in relevant part, using peer-to-peer networks (e.g., BitTorrent) to "seed" (i.e., upload and distribute) copyrighted songs to the public for free. Rather than remove the content, warn first-time infringers, and terminate repeat offenders, Cox's policy was to wait until a customer received at least 13 takedown notices before sending "stern warning," and then repeat that process, rarely removing content or terminating customers. Moreover, Cox had set an arbitrary cap under which it deleted two-thirds of all takedown notices received, without taking any action. As documented in its own internal emails, Cox prioritized business retention over enforcement, e.g., "[w]e need the customers," and had a deep disdain for the law, e.g., "F the dmca!!!" The resulting data bears that out: during a period when it received roughly 163,000 takedown notices, Cox terminated only 32 customers for copyright infringement. Meanwhile, infringing content rose to about 21% of Cox's network traffic. This led to the music producers filing suit against Cox for contributory copyright infringement. A jury unanimously found Cox liable, which was affirmed on appeal. Cox has now appealed to the U.S. Supreme Court.

Because the jury and appellate court handily rejected Cox's attempt to qualify for the DMCA's safe harbor due to its open defiance of the DMCA, Cox raised a new argument in its appeal to the Supreme Court. Namely, that the safe harbor's very existence shows that Congress understood ISPs might continue serving infringing customers and did not treat that alone as contributory infringement—otherwise, it would have written the safe harbor requirement (i.e., to terminate infringing customers) as a duty instead of an option. To be liable for contributory copyright infringement, Cox argued that the music producers must point to affirmative acts taken by Cox that contributed to copyright infringement by another. In response, the music producers argued that Cox is contributorily liable because, after multiple infringement notices per account, it knowingly kept providing service to serial infringers—thereby materially contributing to ongoing infringement. That, they argued, is exactly the underlying contributory liability Congress anticipated for ISPs; and because Cox neither qualified for nor invoked the DMCA's safe harbor on appeal to limit that exposure, there is no statutory shelter to save Cox. Moreover, Cox's interpretation of the DMCA would render the safe-harbor provision meaningless as it would eliminate the very underlying liability the safe harbor was created to protect against. The Supreme Court's decision is expected in the spring of 2026.

While the Supreme Court will likely clarify whether contributory infringement requires affirmative action or if inaction is sufficient, it remains unclear how Cox's open hostility to the DMCA will affect that analysis. Will it be too much for the Supreme Court to avoid finding Cox culpable, or will the Supreme Court enjoy the irony of using statutory interpretation of the DMCA to save Cox from liability under the DMCA, a law it passionately hated?

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