Cox Communications v. Sony Music Entertainment: What the Supreme Court’s Copyright Showdown Means for Artists and Creators
Holon Law Partners, LLP — Thought Leadership Series: By Jay Kotzker
Disclaimer: The following is for informational purposes only and does not constitute legal advice.
Why This Case Matters
The Supreme Court’s review of Cox Communications, Inc. v. Sony Music Entertainment has placed a spotlight on one of the most enduring digital-era challenges: how to meaningfully protect creative works in an environment where unauthorized copying remains widespread, technologically easy, and frequently anonymous.
At stake is not only a $1 billion verdict against Cox, but also the future contours of secondary copyright liability—when a service provider can be held responsible for its users’ infringement.
For artists, authors, labels, and other rights holders, the decision could shape the effectiveness of notice-and-takedown systems, the strength of enforcement tools, and the incentives ISPs have to respond when infringement is flagged.
The Legal Question: What Counts as ISP “Responsibility”?
Sony’s Position
Sony argues that Cox received millions of infringement notices and repeatedly chose not to terminate subscribers—even when the pattern made clear that users were engaged in ongoing, intentional piracy. Under Sony’s view:
- Cox knew infringement was occurring.
- Cox continued providing service despite those notices.
- That conduct amounts to material contribution under the longstanding Gershwin standard.
Sony emphasizes that the DMCA’s safe harbor protects ISPs only when they reasonably implement a policy for terminating repeat infringers—and the lower courts concluded Cox did not.
Cox’s Position
Cox frames the issue differently, arguing:
- It offers a general-purpose internet connection, not a tool designed to support infringement.
- It took no affirmative action to induce or encourage piracy.
- Termination—especially of institutional users like universities, hospitals, or military bases—is not a “reasonable” or practical remedy.
- Millions of automated notices include errors, making termination overly harsh and unreliable.
Cox relies heavily on Grokster and recent decisions like Twitter v. Taamneh, asserting that liability should attach only where a defendant engages in affirmative, culpable conduct—not mere non-feasance.
Signals from the Court: Skepticism for Both Sides
The December 1 arguments reflected a Court wrestling with competing concerns:
Concerns About Sony’s Theory
Several justices—Kagan, Gorsuch, Kavanaugh, and Thomas in particular—expressed deep skepticism about:
- Imposing massive liability without clear congressional authorization.
- Treating non-feasance (failing to terminate users) as “material contribution.”
- Implementing rules that would force institutions to throttle speeds or terminate thousands of users, as Justice Alito illustrated with his hypothetical involving universities.
Justice Kagan distilled the doctrine into three core principles:
- Liability requires intent or affirmative conduct.
- Non-feasance is not enough.
- Liability requires providing special assistance, not merely general-purpose services.
She suggested Sony’s theory fails under all three.
Concerns About Cox’s Theory
Other justices pressed Cox on the opposite extreme:
If ISPs can never be liable absent overt inducement, then what meaning does the DMCA safe harbor have at all? Why would Congress create a “repeat infringer” requirement if ignoring it carries no consequences?
This tension—avoiding over-reach while maintaining workable enforcement—sits at the heart of the case.
Implications for Creators and Copyright Holders
Regardless of how the Court ultimately rules, several themes are clear:
- Enforcement Tools Remain Imperfect
Notice-and-takedown systems are overwhelmed by volume, errors, and automation. Rights holders continue to shoulder the burden of policing their works—often against large intermediaries with limited incentives - Courts Remain Cautious About Expanding Secondary Liability
Recent opinions show reluctance to impose broad aiding-and-abetting theories without explicit statutory grounding. This trend may continue here. - Congressional Reform May Be on the Horizon
Multiple justices suggested the DMCA’s architecture is showing its age. As digital consumption evolves, statutory clarity may be necessary to balance innovation, access, and rights protection.
How Holon Law Partners Protects Artists and Creators
At Holon, we work daily with artists, producers, labels, authors, and creators who face the realities highlighted by this case.
We Help Clients:
- Register and strengthen copyright portfolios to maximize enforcement leverage.
- Develop proactive rights-management strategies, including takedown programs and automated enforcement tools.
- Draft and negotiate licensing agreements that safeguard long-term revenue.
- Pursue enforcement actions—from targeted notices to litigation—in cases of persistent infringement.
- Navigate digital distribution platforms, ensuring creators retain control over how their art is used and monetized.
Our Philosophy
Holon’s approach is guided by three principles:
- Empowerment — Creators deserve to understand and control their rights.
- Protection — Effective IP enforcement must be strategic, proportional, and aligned with each creator’s goals.
- Partnership — We work collaboratively with clients to build sustainable, long-term value in their creative assets.
Closing Perspective
The Supreme Court’s decision in Cox v. Sony may reshape the boundaries of ISP liability, but it will not change a simple truth: creative works are valuable assets that require careful, active protection.
As technology accelerates and enforcement frameworks evolve, Holon Law Partners remains committed to standing with artists and content owners—helping them safeguard their IP, navigate uncertainty, and thrive in an increasingly complex digital landscape.
If you’d like help shaping a copyright protection strategy or understanding how this case may influence your rights, our team is here to support you.
