We See Nothing: The Surprising Ruling of Non-Infringement in Cox
In a major blow to copyright holders, a recent high stakes battle between Cox Communications and Sony Music Entertainment has redefined the boundaries of internet service provider (ISP) liability.
The Background: 163,000 Red Flags
As an ISP, Cox provides the “pipes” for the internet. Sony, representing various music copyright owners, employed the firm MarkMonitor to track illegal downloads. Over a two-year period, Sony sent Cox approximately 163,000 notices identifying specific IP addresses associated with copyright infringement.
Despite these thousands of notices, the infringing activity continued. Sony sued Cox in federal district court on two counts:
- Contributory Infringement: Claiming Cox contributed to the users’ illegal activity.
- Vicarious Liability: Claiming Cox was responsible for the infringement occurring on its network.
The initial jury found Cox liable on both counts. However, upon appeal, the Fourth Circuit Court of Appeals delivered a split decision: it affirmed the contributory infringement but reversed the vicarious liability.
The Ruling: Intent is Everything
The Supreme Court ultimately held that Cox was not liable for contributory infringement. The reasoning? Cox did not intend for its service to be used for illegal downloading.
The court found that:
- Cox did not actively induce users to infringe.
- The service was not “tailored” specifically for copyright
- Providing a general-purpose tool (internet access) that can be used for infringement is not the same as intending for it to happen.
The Takeaway: Knowledge vs. Intent
The court’s decision essentially looked past the fact that Cox received 163,000 notices and did nothing. The takeaway for IP owners is clear: To prevail on contributory infringement, you must prove intent. Simply knowing that a service can be used for infringing activity—or even being told it is being used that way—may no longer be enough to hold a service provider liable if the service has substantial non-infringing uses. In this case, the court decided that “knowing” wasn’t “doing.”
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