Justice Amy Coney Barrett questioned on Monday why internet service providers would have any reason to assist in curbing copyright infringement by their users if the Supreme Court finds providers cannot be held liable for their users’ unlawful activity.
Barrett’s question came during oral arguments in Cox Communications v. Sony Music Entertainment, which centers on whether internet providers can be found liable for “materially contributing” to copyright infringement just for knowing some customers’ accounts are infringing and declining to terminate their access to the internet. The justice questioned whether Cox would still have any reason to issue notices of infringement to its users, warning them, if the high court sides with them.
“For the simple reason that Cox is a good corporate citizen that cares a lot about what happens on its system. We do all sorts of things that the law does not require us,” Cox lawyer Joshua Rosenkranz told Barrett.
Barrett followed up by asking if the company sends out notices to customers to avoid liability, to which Rosenkranz answered that it did.
Rosenkranz argued to the justices that Sony’s argument, that Cox has done nothing to curb copyright infringement by its customers, is “absurd,” pointing to the anti-infringement program it made and noting that, with that program, it suspended more than 67,000 accounts over infringement claims.
Justice Sonia Sotomayor later questioned Justice Department lawyer Malcolm Stewart, who argued in support of Cox’s arguments, over why ISPs would “bother” with helping copyright holders fight infringement if they are not liable.
Stewart conceded that there would not be “much economic incentive” but that infringement violations could be handled in different ways. He pointed to the Digital Millennium Copyright Act, specifically parts where infringing materials are simply removed rather than all access to the internet.
“You get rid of the infringing materials, but the rest of the platform remains intact, and people can use it,” Stewart said. “The approach of terminating all access to the internet based on infringement, it seems extremely overbroad, given the centrality of the internet to modern life and given the First Amendment.”
When Sony’s lawyers were questioned by the justices, Justice Elena Kagan asked why Cox and other ISPs would continue to read notices sent by copyright holders if the high court rules the ISPs can be found liable for knowledge of the violations on their platforms. Sony’s lawyer, Paul Clement, argued that it would be “willful blindness” on the part of the ISPs, for which they could still be held liable.
The lower federal appeals court sided with Sony, finding that Cox could be held liable for its users’ copyright infringement and possibly liable for up to $1.5 billion in damages. During arguments on Monday, the justices seemed equally skeptical of both sides’ arguments.
Sotomayor said during oral arguments that the justices were “being put to two extremes” with Cox’s and Sony’s arguments over just how much or little of a shield from liability an ISP should get for infringements by its users.
TRUMP STARTING TO SEE WINS IN TRANSGENDER COURT BATTLES
A decision by the justices in Cox Communications v. Sony Music Entertainment will be released by the end of June 2026, but it could come sooner.
The Supreme Court will hold additional oral arguments in different cases this week and next week, including in cases involving privacy of donor lists, the president’s ability to fire independent agency heads, and limits on coordinated spending between political parties and candidates.