Amicus Curiae Brief — Cox Communications, Inc., et al., Petitioners v. Sony Music Entertainment, et al.

Supreme Court briefSep 5, 2025

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No. 24-171

In the Supreme Court of the United States

COX COMMUNICATIONS, INC., ET AL.,

PETITIONERS

SONY MUSIC ENTERTAINMENT, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

D. JOHN SAUER

Solicitor General

Counsel of Record

YAAKOV M. ROTH

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

AARON Z. ROPER

Assistant to the

Solicitor General

DANIEL TENNY

SARAH N. SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Copyright Act of 1976, 17 U.S.C. 101 et seq.,

grants copyright holders the exclusive rights to perform, display, reproduce, and distribute their protected

works. 17 U.S.C. 106. Any person who violates those

rights is liable for actual or statutory damages, 17

U.S.C. 501 (2018 & Supp. V 2023); 17 U.S.C. 504(b) and

(c), with a higher statutory-damages cap when the “infringement was committed willfully,” 17 U.S.C. 504(c)(2).

Although the Copyright Act does not expressly provide

for secondary liability, this Court has long recognized

secondary copyright liability based on “common law

principles,” including for one who “infringes contributorily by intentionally inducing or encouraging direct infringement.” Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd., 545 U.S. 913, 930 (2005). The questions

presented are as follows:

1. Whether an internet service provider that continues to provide internet access to particular subscribers,

after being notified that those subscribers’ accounts

have been used to commit copyright infringement, is

contributorily liable for future infringement on those

accounts.

2. Whether a contributory copyright infringer “willfully” violates the Copyright Act when it acts with

knowledge that the direct infringer’s actions are unlawful but reasonably and in good faith believes that its own

conduct is lawful.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Introduction................................................................................... 2

Statement ...................................................................................... 3

A. Statutory background ............................................. 3

B. Procedural history ................................................... 5

Summary of argument ................................................................. 8

Argument..................................................................................... 10

I. An internet service provider is not liable for

contributory copyright infringement for failing to

terminate specific subscriber accounts that it is

substantially certain will be used to commit direct

infringement ............................................................... 10

A. Contributory liability for copyright

infringement requires culpable intent to

facilitate infringement........................................... 11

B. The culpable-intent requirement aligns

C. The general common-law principles that

govern liability for aiding and abetting

confirm the need for culpable intent here ........... 17

D. The court of appeals erred in holding Cox

contributorily liable for its subscribers’

infringement........................................................... 21

E. The court of appeals’ decision threatens

universal internet access....................................... 29

II. Proof that an internet service provider knew of its

customers’ copyright infringement does not

establish that the provider acted willfully in

continuing to provide service ........................................ 31

Conclusion ................................................................................... 34

(III)

TABLE OF AUTHORITIES

Cases:

Page

BMG Rights Mgmt. (US) LLC v. Cox Commc’ns,

Inc., 881 F.3d 293 (4th Cir. 2018) .............................. 6, 7, 32

Carbice Corp. of Am. v. American Patents Dev.

Corp., 283 U.S. 27 (1931) .................................................... 27

Dawson Chem. Co. v. Rohm & Haas Co.,

448 U.S. 176 (1980)............................................ 15, 16, 26, 27

Direct Sales Co. v. United States,

319 U.S. 703 (1943)........................................................ 20, 21

Global-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 754 (2011)........................................................ 15, 33

Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021),

rev’d sub nom. Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023)........................................................ 18, 24

Graves v. Johnson, 60 N.E. 383 (Mass. 1901)..................... 14

Halo Elecs., Inc. v. Pulse Elecs., Inc.,

579 U.S. 93 (2016) ............................................................... 33

Henry v. A.B. Dick Co., 224 U.S. 1 (1912),

overruled on other grounds by Motion Picture

Patents Co. v. Universal Film Mfg. Co.,

243 U.S. 502 (1917)............................................. 15, 16, 25-27

Kalem Co. v. Harper Bros.,

222 U.S. 55 (1911) ............................................... 4, 13, 14, 24

McLaughlin v. Richland Shoe Co.,

486 U.S. 128 (1988)........................................................ 32, 33

Metro-Goldwyn-Mayer Studios Inc. v. Grokster,

Ltd., 545 U.S. 913 (2005) ........... 2-4, 10-15, 17, 22-24, 28, 34

Moody v. NetChoice, LLC, 603 U.S. 707 (2024) ................. 30

Motion Picture Patents Co. v. Universal Film Mfg.

Co., 243 U.S. 502 (1917) ...................................................... 27

Nye & Nissen v. United States, 336 U.S. 613 (1949) ... 18, 19

Cases—Continued:

Page

Packingham v. North Carolina, 582 U.S. 98 (2017) .......... 30

Perfect 10, Inc. v. Visa Int’l Serv., Ass’n,

494 F.3d 788 (9th Cir. 2007), cert. denied,

553 U.S. 1079 (2008).............................................................. 6

Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325

(Fed. Cir. 2008), cert. denied, 557 U.S. 936 (2009) .......... 15

Rupp & Wittgenfeld Co. v. Elliott,

131 F. 730 (6th Cir. 1904) ................................................... 17

Safeco Ins. Co. v. Burr, 551 U.S. 47 (2007) ......................... 31

Smith & Wesson Brands, Inc. v. Estados Unidos

Mexicanos, 605 U.S. 280 (2025)...... 17, 19-21, 23, 27, 28, 30

Sony Corp. v. Universal City Studios, Inc.,

464 U.S. 417 (1984)..................4, 11, 13-15, 17, 22, 24, 27, 30

Thomson-Houston Elec. Co. v. Ohio Brass Co.,

80 F. 712 (6th Cir. 1897) ..................................................... 16

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985).............................................................. 31

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023)................................................... 17-25, 27

United States v. Falcone, 109 F.2d 579 (2d Cir.),

aff ’d, 311 U.S. 205 (1940) ................................................... 20

United States v. Thompson, 539 Fed. Appx. 778

(9th Cir. 2013)...................................................................... 25

Wallace v. Holmes, 29 F. Cas. 74

(C.C.D. Conn. 1871) ...................................................... 16, 17

Water Techs. Corp. v. Calco, Ltd., 850 F.2d 660

(Fed. Cir.), cert. denied, 488 U.S. 968 (1988) ................... 15

Statutes:

Antiterrorism Act of 1990, Pub. L. No. 101-519,

§ 132, 104 Stat. 2250............................................................ 18

Statutes—Continued:

Page

17 U.S.C. 106 ...................................................................... 3

17 U.S.C. 501 (2018 & Supp. V 2023) ............................... 4

17 U.S.C. 504(b) ................................................................. 4

17 U.S.C. 504(c)(1) ................................................. 4, 31, 33

17 U.S.C. 504(c)(2) ......................................... 3, 4, 6, 31, 33

17 U.S.C. 506(a)(1)........................................................... 33

17 U.S.C. 512 .................................................................... 29

17 U.S.C. 512(a) ........................................................... 5, 28

17 U.S.C. 512(i)(1)(A) .................................................. 5, 28

17 U.S.C. 512(l) ...................................................... 5, 28, 29

Digital Millennium Copyright Act,

Pub. L. No. 105-304, 112 Stat. 2860 .................................... 4

Patent Act of 1952, 35 U.S.C. 1 et seq. ................................. 14

35 U.S.C. 271(b) ............................................................... 15

35 U.S.C. 271(c) ......................................................... 15, 17

Protection of Lawful Commerce in Arms Act,

15 U.S.C. 7901 et seq. .......................................................... 19

Miscellaneous:

5 Donald S. Chisum, Chisum on Patents

(LexisNexis 2025) ............................................................... 17

Paul Goldstein, Goldstein on Copyright

(Westlaw 2025) .................................................................... 33

H.R. Rep. No. 796, 105th Cong., 2d Sess. (1998) ................ 28

Melville B. Nimmer & David Nimmer, Nimmer on

Vol. 3 ................................................................................... 4

Vol. 4 ................................................................................. 30

Vol. 5 ................................................................................. 32

S. Rep. No. 190, 105th Cong., 2d Sess. (1998) ................... 4, 5

In the Supreme Court of the United States

No. 24-171

COX COMMUNICATIONS, INC., ET AL.,

PETITIONERS

SONY MUSIC ENTERTAINMENT, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the circumstances under which an

internet service provider (ISP) may be held contributorily liable for acts of copyright infringement committed

through use of its subscribers’ accounts. The United

States has a substantial interest in the effective protection of intellectual property, which represents a significant portion of the Nation’s economy. At the same time,

the United States has a substantial interest in fostering

technological developments and beneficial uses of digital technologies and in ensuring the broad availability

of critical communications services like the internet. At

the invitation of the Court, the United States filed a

brief as amicus curiae at the petition stage of this case.

(1)

INTRODUCTION

Although the Copyright Act of 1976, 17 U.S.C. 101 et

seq., does not expressly provide for secondary liability,

this Court has long recognized that, in some circumstances, providers of goods or services may be held liable for acts of direct infringement committed by their

customers. Imposition of secondary liability is appropriate only when the provider acts with “culpable intent” to facilitate infringement. Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 934 (2005).

A presumption of such intent arises when a provider

sells an article that lacks a commercially significant

non-infringing use. See id. at 932. And when particular

goods are suitable for both infringing and non-infringing uses, the seller’s “unlawful purpose” may be established by evidence that the seller urged or encouraged

its customers to commit infringement. Id. at 935.

The court of appeals in this case did not suggest that

either of those rationales for secondary liability was applicable here. Rather, the court held that culpable intent to facilitate infringement may be inferred when a

seller continues to provide lawful services to specific

customers that the seller knows will use those services

to commit direct infringement. On that basis, the court

sustained a jury verdict holding petitioner Cox Communications, Inc. liable for continuing to provide internet

access to specific accounts that Cox knew had been used

to commit repeated acts of infringement.

That expansive view of contributory copyright infringement cannot be reconciled with this Court’s precedent. In both copyright and patent cases, “mere

knowledge * * * of actual infringing uses” is an insufficient basis for imposing secondary liability on the

seller of goods or services that are used to commit in-

fringement. Grokster, 545 U.S. at 937; see id. at 935-936.

And under the common law of aiding and abetting more

generally, an ordinary merchant’s knowledge that a

specific customer plans to misuse its product, standing

alone, does not demonstrate culpable intent to participate in that misuse. In this case, the evidence demonstrated at most that Cox was indifferent to its subscribers’ infringement, not that Cox intended to participate

in that infringement or wished to bring it about. The

court of appeals’ judgment upholding Cox’s liability

therefore should be reversed.

The court of appeals further erred by approving an

instruction that allowed the jury to find that Cox had

“willfully” infringed (and thus faced higher statutory

damages) if it knew about its subscribers’ infringement.

17 U.S.C. 504(c)(2). Willfulness in the civil context generally requires knowledge or reckless disregard of the

fact that one’s own conduct is unlawful. The instruction

here instead permitted enhanced damages based on

Cox’s knowledge of its customers’ unlawful conduct,

even if Cox reasonably and in good faith believed that

its own continued provision of internet services was

lawful. That instruction is incompatible with the ordinary understanding of willfulness, and it risks making

enhanced damages the norm in contributory-copyrightinfringement suits.

STATEMENT

A. Statutory Background

1. The Copyright Act grants copyright owners the

“exclusive rights” to perform, display, reproduce, and

distribute their copyrighted works, and to prepare derivative works based upon those works. 17 U.S.C. 106.

Any person who violates those rights is a copyright infringer and is liable for actual damages or statutory

damages of up to $30,000 per infringed work. 17 U.S.C.

501 (2018 & Supp. V 2023); 17 U.S.C. 504(b) and (c)(1).

Where the “infringement was committed willfully,” a

court may award statutory damages of up to $150,000

per work. 17 U.S.C. 504(c)(2).

Although “[t]he Copyright Act does not expressly

render anyone liable for infringement committed by another,” this Court has long recognized doctrines of secondary copyright liability. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)

(quoting Sony Corp. v. Universal City Studios, Inc., 464

U.S. 417, 434 (1984)) (brackets in original); see Kalem

Co. v. Harper Bros., 222 U.S. 55 (1911). Secondary liability for copyright infringement is “a species of the

broader problem of identifying the circumstances in

which it is just to hold one individual accountable for the

actions of another.” Sony, 464 U.S. at 435. Contributory infringement “emerged from common law principles,” Grokster, 545 U.S. at 930, and “forms an outgrowth of the tort concept of enterprise liability,”

3 Melville B. Nimmer & David Nimmer, Nimmer on

2. In 1998, Congress enacted the Digital Millennium

2860, to “bring[] U.S. copyright law squarely into the

digital age.” S. Rep. No. 190, 105th Cong., 2d Sess. 2

(1998). The DMCA was intended to promote the distribution of copyrighted works online by providing “reasonable assurance” that copyright owners would be protected “against massive piracy.” Id. at 8. But the Act

also established a safe harbor for online service providers who might otherwise “hesitate to make the necessary investment in the expansion of the speed and capacity” of the then-nascent internet. Ibid. That safe

harbor immunizes service providers against certain

that the variety and quality of services on the Internet

will continue to expand.” Ibid.

The DMCA’s safe-harbor defense precludes the imposition of monetary liability for copyright infringement on service providers who, inter alia, “adopt[] and

reasonably implement[] * * * a policy that provides for

the termination in appropriate circumstances of subscribers * * * who are repeat infringers.” 17 U.S.C.

512(i)(1)(A); see 17 U.S.C. 512(a). A service provider’s

failure to qualify for the safe harbor “shall not bear adversely” upon any other defense the provider may

assert, including that its “conduct is not infringing.”

17 U.S.C. 512(l).

B. Procedural History

1. Petitioner Cox Communications, Inc. provides internet and other services to six million American homes

and businesses for a flat monthly fee. Pet. App. 6a, 8a.

Respondents Sony Music Entertainment and 52 other

record companies and music publishers (collectively,

Sony) hold the copyrights to numerous musical works.

Id. at 6a, 42a. An industry association that includes respondents hired an anti-piracy firm to alert ISPs like

Cox when one of their subscribers downloads or distributes a copyrighted work using peer-to-peer file-sharing

tools like BitTorrent. Id. at 8a-9a. During a 22-month

period, Cox received a “tidal wave” of 163,148 notices.

Id. at 9a, 43a, 45a. Cox’s responses to such notices varied depending on how many previous warnings Cox had

given a particular subscriber. Id. at 9a. Cox took no

action against first-time infringers but sent escalating

warnings to repeat offenders and, in rare cases, terminated internet service. Ibid.

2. Sony sued Cox in the United States District Court

for the Eastern District of Virginia, alleging that Cox

was vicariously and contributorily liable for infringement committed on its subscribers’ accounts. Pet. App.

9a-10a. Sony limited its case to infringement committed

in 2013 and 2014 on the accounts of Cox subscribers who

had received three or more infringement notices. Id. at

10a, 43a. The Fourth Circuit had previously determined

that Cox did not qualify for the DMCA safe harbor during that period, see BMG Rights Mgmt. (US) LLC v.

Cox Commc’ns, Inc., 881 F.3d 293, 301-305 (2018), so the

case proceeded without that defense.

On cross-motions for summary judgment, the district court treated contributory copyright infringement

as having two elements: (1) “knowledge of another’s infringement” and (2) either a material contribution to or

an inducement of that infringement. Pet. App. 163a

(quoting Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494

F.3d 788, 795 (9th Cir. 2007), cert. denied, 553 U.S. 1079

(2008)). The court held that the infringement notices

established knowledge as a matter of law, but it left the

material-contribution-or-inducement element for the

jury. Id. at 21a, 172a. The jury found Cox liable for

vicarious and contributory infringement. Id. at 10a.

Under the Copyright Act, the maximum statutory

damages award is increased to $150,000 (rather than

$30,000) per infringed work if the “infringement was

committed willfully.” 17 U.S.C. 504(c)(2). The district

court in this case instructed the jury that Cox’s infringement was willful if “Cox had knowledge that its

subscribers’ actions constituted infringement of plaintiffs’ copyrights, acted with reckless disregard for the

infringement of plaintiffs’ copyrights, or was willfully

blind to the infringement of plaintiffs’ copyrights.” C.A.

App. 804. Cox objected to the instruction but acknowledged that its objection was foreclosed by circuit precedent. Id. at 704, 744-745; see BMG, 881 F.3d at 312313 & n.7.

The jury found that Cox had acted willfully and

awarded statutory damages of $99,830.29 per infringed

work, for a total of $1 billion. Pet. App. 10a-11a. The

district court denied in relevant part Cox’s motion for

judgment as a matter of law. Id. at 68a, 111a.

3. The court of appeals reversed on vicarious liability but upheld the jury’s verdict on contributory liability. Pet. App. 1a-38a.*

With respect to contributory liability, the court of

appeals affirmed the district court’s conclusion on summary judgment that Cox knew “that subscribers were

substantially certain to infringe in the future,” holding

that Cox had forfeited any argument to the contrary.

Pet. App. 22a; see id. at 22a-25a. The court of appeals

also upheld the jury’s finding that Cox had materially

contributed to its subscribers’ direct infringement. Id.

at 25a-28a. The court held that the jury’s verdict was

adequately supported by evidence that Cox’s internet

service was “indispensable” to the infringement and

that Cox had failed to address the infringement despite

specific knowledge that it was occurring. Id. at 26a

(citation omitted); see id. at 28a. In the court’s view,

“supplying a product with knowledge that the recipient

will use it to infringe copyrights” is the sort of “culpable

conduct” that is “ ‘equivalent to aiding and abetting the

* Sony filed a petition for a writ of certiorari seeking review of the

court of appeals’ vicarious-liability holding, but this Court denied

the petition. See No. 24-181, 2025 WL 1787722 (June 30, 2025).

infringement.’ ” Id. at 27a (quoting Pet. C.A. Br. 43).

The court also asserted that “providing the means to infringe” to a known infringer “is culpable pursuant to the

common law rule that a person is presumed to intend

the substantially certain results of his acts.” Ibid. (emphasis omitted).

On appeal, Cox had preserved its objection to the district court’s willfulness instruction, while acknowledging that circuit precedent foreclosed the argument. Pet.

C.A. Br. 55 n.3. The court of appeals affirmed the jury’s

contributory-infringement finding without addressing

willfulness. Pet. App. 10a, 28a.

SUMMARY OF ARGUMENT

I. An ISP does not commit contributory copyright

infringement simply by failing to terminate subscriber

accounts that it is substantially certain will be used to

commit direct infringement.

A. Contributory copyright infringement requires

culpable intent to facilitate direct infringement. This

Court has identified two ways in which a seller of goods

or services may be shown to have culpably intended that

those goods or services be used to commit infringement.

The seller may evince such intent directly by urging or

encouraging another to infringe. Or the seller’s intent

may be inferred from its sale of goods or services that

lack commercially significant non-infringing uses. Neither of those rationales for secondary liability applies

here.

B. This Court has repeatedly looked to patent law to

define the contours of contributory copyright infringement. In patent law too, a defendant can face secondary

liability for actively inducing another’s infringement or

for selling a good that lacks a substantial non-infringing

use. But mere knowledge that a specific customer plans

to misuse an otherwise lawful good does not support liability. There is no reason to apply a different rule here.

C. This Court’s recent decisions elucidating commonlaw aiding-and-abetting principles confirm that a merchant’s knowledge of a customer’s planned illegal activity is ordinarily an insufficient basis for imposing secondary liability. Instead, the defendant must consciously

and culpably participate in the wrongful act as something

that he wishes to bring about.

D. The court of appeals erred in affirming the imposition of contributory liability here. Cox’s internet services have substantial non-infringing uses; Cox sold

those services on the same terms to all customers; and

Cox did not encourage any customer to use those services to commit infringement.

Cox’s knowledge that particular accounts would be

used to infringe does not support an inference of culpable intent. At worst, Cox was indifferent to infringement, supplying internet access to all customers on

equal terms. Sony and the court of appeals have identified no evidence that Cox intended for infringement to

occur or wished to bring it about. And an ordinary merchant’s awareness of a customer’s unlawful plans, standing alone, does not demonstrate the desire that those

plans succeed.

E. Affirmance of the ruling below would create a

substantial disincentive to ISPs’ provision of universal

internet service. Terminations of service would adversely

affect not only actual infringers, but also the potentially

numerous non-infringing users of terminated accounts.

Particularly given the centrality of the internet to modern

life, this Court should not expand the scope of commonlaw contributory liability beyond its established bounds.

II. The district court’s jury instruction on willfulness was also erroneous. In civil cases, willfulness generally requires knowledge or reckless disregard of the

fact that one’s own conduct is unlawful. By permitting

enhanced statutory damages based on Cox’s knowledge

that its customers’ conduct was unlawful, the court of

appeals deviated from that background understanding

and risked making enhanced damages the norm for contributory copyright infringement.

ARGUMENT

I. AN INTERNET SERVICE PROVIDER IS NOT LIABLE

FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

FOR FAILING TO TERMINATE SPECIFIC SUBSCRIBER

ACCOUNTS THAT IT IS SUBSTANTIALLY CERTAIN

WILL BE USED TO COMMIT DIRECT INFRINGEMENT

The Copyright Act does not explicitly authorize the

imposition of secondary infringement liability or define

the circumstances in which such liability may be imposed. But this Court has long recognized that such liability may appropriately be premised on “common law

principles.” Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd., 545 U.S. 913, 930 (2005). Contributory

at 934—i.e., the affirmative desire that direct infringement occur, not mere knowledge that a customer plans

to infringe. That requirement aligns copyright law with

patent law and with the background principles that govern common-law aiding-and-abetting liability. Cox’s

continued provision of internet access to known infringers, on the same terms that Cox provides service to

other accounts, does not demonstrate culpable, intentional participation in any resulting direct infringement.

A. Contributory Liability For Copyright Infringement Requires Culpable Intent To Facilitate Infringement

This Court’s two modern decisions addressing contributory copyright infringement, Grokster and Sony

Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984),

identify two ways in which a seller of goods or services

can be shown to have acted with the requisite culpable

intent to infringe. First, a plaintiff can offer “direct evidence of unlawful purpose,” such as by showing that

the defendant urged or encouraged another to use the

defendant’s goods or services to commit copyright infringement. Grokster, 545 U.S. at 935. Second, a plaintiff can establish an inference of culpable intent by

showing that the defendant sold a product that is not

“capable of commercially significant noninfringing

uses.” Sony, 464 U.S. at 442. Neither rationale treats

the vendor’s knowledge that particular customers will

commit direct infringement as a sufficient basis for imposing secondary liability.

1. The Grokster Court held that contributorycopyright-infringement liability could properly be imposed on two companies that had distributed peer-topeer file-sharing software. 545 U.S. at 919-920, 923-924.

That software had enabled a “staggering” amount of infringement, with one defendant’s network apparently

containing 90% copyrighted works. Id. at 923; see id. at

922-924. The defendants knew that millions of specific

copyrighted works were available on their networks and

that specific users—who had emailed questions about

their illegal downloads—were engaged in direct infringement. Id. at 923.

In Grokster, this Court did not treat that “mere

knowledge * * * of actual infringing uses” as sufficient

for liability. 545 U.S. at 937. Instead, the Court distin-

guished such “passive” awareness of infringement from

the Grokster defendants’ “active steps to encourage infringement” with “the objective that” users infringe.

Id. at 923-924. For example, one defendant had advertised its ability to provide popular copyrighted music.

Id. at 938. And both defendants had advertised themselves as replacements for Napster—a file-sharing service that was “notorious” for facilitating copyright infringement. Id. at 924; see id. at 924-926, 937-939.

Those “active steps,” rather than the defendants’ mere

awareness of specific users’ infringement, demonstrated

the required “purpose of bringing about infringing acts.”

Id. at 938.

Grokster makes clear that the touchstone of contributory copyright infringement is the “intentional facilitation of * * * infringement.” 545 U.S. at 939; accord

id. at 931 (“intent to promote infringing uses”); id. at

932 (“an intent to infringe”); id. at 933 (“intent to cause

infringement”); id. at 934 (“culpable intent”); id. at 935,

938 (“unlawful purpose”); id. at 938 (“the purpose of

bringing about infringing acts”); ibid. (“a purpose to

cause copyright violations”); id. at 939 (“evidence of intent”); ibid. (“intent * * * to bring about infringement”); id. at 939-940 (“unlawful objective”); id. at 940

(“unlawful intent”); ibid. (“intent to bring about infringement”); id. at 940 n.13 (the defendant “intended

and encouraged the product to be used to infringe”); id.

at 941 (“a purpose to cause and profit from third-party

acts of copyright infringement”); ibid. (“a patently illegal objective”). Where a defendant “distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement,” the defendant

“is liable for the resulting acts of infringement by third

parties.” Id. at 936-937. But the “mere knowledge of

infringing potential or of actual infringing uses” is not

enough. Id. at 937.

2. A plaintiff can also demonstrate the requisite culpable intent indirectly, by showing that the defendant

sold a product that was not “capable of commercially

significant noninfringing uses.” Sony, 464 U.S. at 442.

In such cases, courts may “presum[e] or imput[e] intent

to cause infringement,” even without evidence that the

defendant specifically urged its customers to infringe.

Grokster, 545 U.S. at 933.

The Court in Sony discussed that principle. The defendant there sold a product—home videotape

recorders—that could be used to infringe but that was

also “capable of substantial noninfringing uses,” such as

recording programs for later viewing. 464 U.S. at 442.

The Court concluded that the “sale of such equipment

to the general public does not constitute contributory

infringement of [the plaintiffs’] copyrights.” Id. at 456;

see id. at 442-456. Even when the defendant “knows [its

product] is in fact used for infringement,” liability does

not apply to the mere sale of “a product capable of substantial lawful use.” Grokster, 545 U.S. at 933. By contrast, the Court later explained, selling a product that

lacks substantial non-infringing uses does justify liability. See id. at 932 (“[ W ]here an article is ‘good for nothing else’ but infringement, * * * there is no injustice in

presuming or imputing an intent to infringe.”) (citation

omitted).

3. Grokster and Sony echo this Court’s first

contributory-copyright-infringement decision, Kalem

Co. v. Harper Bros., 222 U.S. 55 (1911). There, the producer of an unauthorized film dramatization of the novel

Ben Hur had sold the film to distributors, who had pub-

licly exhibited the work. Id. at 62-63. Although the producer itself did not exhibit the film, the Court held that

it was subject to secondary liability for the distributors’

infringement. Ibid.

The Kalem Court acknowledged a prior state-court

decision holding that “mere indifferent supposition or

knowledge” of a customer’s unlawful plans is not enough

to make the seller “an accomplice in a subsequent illegal

use.” 222 U.S. at 62 (discussing Graves v. Johnson, 60

N.E. 383 (Mass. 1901) (Holmes, C.J.)). The Court explained, however, that the Kalem defendant had “not

only expected but invoked by advertisement the use of

its films for dramatic reproduction of the story,” id. at

62-63, i.e., that the defendant had induced the direct infringement. The Court further explained that the infringing exhibition was “the most conspicuous purpose

for which [the films] could be used, and the one for

which especially they were made,” id. at 63, i.e., that the

films lacked commercially significant non-infringing

uses. The Kalem Court’s reasons for holding the defendant liable thus prefigured Grokster and Sony.

B. The Culpable-Intent Requirement Aligns Copyright

With Patent Law

In articulating the principles that govern contributory liability for copyright infringement, this Court has

looked to patent law, which shares a “historic kinship”

with copyright. Sony, 464 U.S. at 439; see Grokster, 545

U.S. at 935-936; Kalem, 222 U.S. at 63 (citing patent

cases). Contributory liability for patent infringement

requires culpable intent, not mere knowledge of a customer’s planned infringement.

As relevant here, the Patent Act of 1952, 35 U.S.C. 1

et seq., imposes secondary liability in two scenarios.

First, a person who “actively induces infringement of a

patent shall be liable as an infringer.” 35 U.S.C. 271(b).

Second, liability attaches for selling a component of a

patented article, “knowing the same to be especially

made or especially adapted for use in an infringement

of such patent, and not a staple article or commodity of

commerce suitable for substantial noninfringing use.”

35 U.S.C. 271(c); see Global-Tech Appliances, Inc. v.

SEB S.A., 563 U.S. 754, 761 (2011).

Those Patent Act provisions correspond to the rationales for secondary liability that the Court identified

in Grokster and Sony. Active inducement under Section

271(b) requires “an affirmative intent that the product

be used to infringe,” which can be shown through direct

evidence “such as advertising an infringing use or instructing how to engage in an infringing use.” Grokster,

545 U.S. at 936 (citing, inter alia, Water Techs. Corp. v.

Calco, Ltd., 850 F.2d 660, 668 (Fed. Cir.), cert. denied,

488 U.S. 968 (1988)). And when a defendant sells a good

especially adapted for patent infringement, in violation

of Section 271(c), “it may be presumed from distribution

of an article in commerce that the distributor intended

the article to be used to infringe.” Id. at 932; accord

Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1338

(Fed. Cir. 2008) (per curiam), cert. denied, 557 U.S. 936

(2009). The Court in Grokster and Sony “adopt[ed]”

those rules as principles of copyright law. Grokster, 545

U.S. at 936; see Sony, 464 U.S. at 442.

Those rules predate the modern Patent Act, which

“codif [ied] certain aspects of the doctrine[] of contributory infringement * * * that previously had been developed by the judiciary.” Dawson Chem. Co. v. Rohm

& Haas Co., 448 U.S. 176, 179 (1980). That pre-Act doctrine required the “intent and purpose” to infringe.

Henry v. A.B. Dick Co., 224 U.S. 1, 48 (1912), overruled

on other grounds by Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502 (1917). A “presumption” of intent arose “when the article so sold [was] only

adapted to an infringing use,” or when that use was the

“most conspicuous” one and was “invoked by advertisement.” Id. at 48-49. But selling goods that were suitable for both infringing and non-infringing uses did not

suffice. Id. at 48.

Early lower-court decisions embraced the same rule.

As then-Judge Taft explained: “It is well settled that

where one makes and sells one element of a combination

covered by a patent with the intention and for the purpose of bringing about its use in such a combination he is

guilty of contributory infringement.” Thomson-Houston

Elec. Co. v. Ohio Brass Co., 80 F. 712, 721 (6th Cir.

1897). Where “the parts sold can only be used in the

combinations patented,” courts drew the “certain inference” that the defendant intended the infringing use. Id.

at 723. But where the product had other, non-infringing

uses, “such an inference could not be drawn.” Ibid.

A court thus imposed contributory liability on defendants who sold a burner that was “utterly useless”

without a glass chimney that would, in combination with

the burner, infringe the plaintiffs’ patent. Wallace v.

Holmes, 29 F. Cas. 74, 79-80 (C.C.D. Conn. 1871) (No.

17,100); see Dawson, 448 U.S. at 188 (calling Wallace a

“classic example” of contributory patent infringement

and explaining that “the contributory infringement doctrine * * * exists to protect patent rights from subversion by those who, without directly infringing the patent

themselves, engage in acts designed to facilitate infringement by others”). By selling a good that could

only be used to infringe, the defendants became “active

parties to the whole infringement, consenting and act-

ing to that end, manufacturing and selling for that purpose.” Wallace, 29 F. Cas. at 80. Likewise, liability attached when a defendant sold “wire adapted to the infringing use, with the intent and purpose that it shall be

so used.” Rupp & Wittgenfeld Co. v. Elliott, 131 F. 730,

732 (6th Cir. 1904). But the sale of wire that is capable

of both infringing and non-infringing uses “would by no

means constitute” infringement, since it is “the intent

and purpose to aid and assist in bringing about an infringement which is the essence of the tort.” Ibid.

Unless a vendor affirmatively encourages infringing

uses of its products, the foregoing principles do not permit the vendor to be held secondarily liable for patent

infringement based on its sale of a good with substantial

non-infringing uses—in patent parlance, a “staple article” of commerce. 35 U.S.C. 271(c). That is true “even

where the seller knew of the buyer’s infringing use.”

5 Donald S. Chisum, Chisum on Patents § 17.03[3]

(LexisNexis 2025).

C. The General Common-Law Principles That Govern Liability For Aiding And Abetting Confirm The Need For

Culpable Intent Here

Contributory copyright infringement is “a species of

the broader problem of identifying the circumstances in

which it is just to hold one individual accountable for the

actions of another.” Sony, 464 U.S. at 435. The “rules

of fault-based liability derived from the common law”

accordingly help to clarify the contours of contributory

This Court recently elucidated those common-law principles in Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023),

and Smith & Wesson Brands, Inc. v. Estados Unidos

Mexicanos, 605 U.S. 280 (2025). Those decisions confirm

that ordinary merchants who provide goods or services

on standard terms are not secondarily liable for their

customers’ misuse of those goods or services, absent evidence that the merchant consciously and culpably participated in the misuse.

1. The Court in Taamneh held that victims of an

ISIS terrorist attack failed to state a claim against

social-media platforms under the Antiterrorism Act of

1990, Pub. L. No. 101-519, § 132, 104 Stat. 2250. 598

U.S. at 484-485, 488. The Taamneh plaintiffs alleged

that the defendants “kn[ew] [ISIS] was using those

platforms” to recruit new adherents and to raise funds,

id. at 505, and that the defendants had knowingly allowed ISIS-affiliated users to post content and had provided algorithms that “matched ISIS-related content to

users most likely to be interested in that content,” id. at

498; see id. at 478-482. The plaintiffs further alleged

that the platforms had “permitted ISIS-affiliated accounts to remain active” even after receiving complaints

about specific accounts. Gonzalez v. Google LLC,

2 F.4th 871, 883 (9th Cir. 2021) (quoting Taamneh complaint), rev’d sub nom. Twitter, Inc. v. Taamneh, 598

U.S. 471 (2023).

This Court held that the plaintiffs’ allegations did not

state a claim for aiding-and-abetting liability. Taamneh, 598 U.S. at 505-506. The Court explained that, at

common law, the “conceptual core” of aiding-andabetting liability was that “the defendant consciously

and culpably ‘participate[d]’ in a wrongful act so as to

help ‘make it succeed.’ ” Id. at 493 (quoting Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)) (brackets

in original). The Court observed that such liability

“normally” requires some form of active participation

like “encouraging, soliciting, or advising the” tortious

conduct. Id. at 500. Were it otherwise, “mostly passive

actors like banks [would] become liable for all of their

customers’ [wrongdoing] by virtue of carrying out routine transactions,” and “those who merely deliver mail

or transmit emails could be liable for the tortious messages contained therein.” Id. at 489, 491.

The Court further held that the defendants’ “alleged

failure to stop ISIS from using these platforms” did not

demonstrate the required conscious and culpable participation. Taamneh, 598 U.S. at 500. The platforms’

relationship with ISIS was “the same as their relationship with their billion-plus other users: arm’s length,

passive, and largely indifferent.” Ibid.; see ibid. (noting

that the plaintiffs had made “no allegations that defendants treated ISIS any differently from anyone else”).

That “passive” supply of social-media “infrastructure”

on generally applicable terms did not demonstrate “active abetting.” Id. at 499. Taamneh reflects this Court’s

understanding that, where a company provides a lawful

service on standard terms to all customers, the common

law generally does not impose aiding-and-abetting liability merely for failing to terminate particular customers that the company knows are misusing its service.

2. This Court reaffirmed those common-law principles last Term in Smith & Wesson, supra. Mexico

sought to hold American gun manufacturers liable for

gun violence in Mexico, alleging that the manufacturers

had negligently allowed their firearms to be trafficked

to Mexican cartels. Smith & Wesson, 605 U.S. at 287288. The Protection of Lawful Commerce in Arms Act,

15 U.S.C. 7901 et seq., generally bars such suits, but

Mexico sought to overcome that bar by alleging that the

manufacturers had aided and abetted retailers’ unlawful sales to gun traffickers, who in turn had supplied the

cartels. Smith & Wesson, 605 U.S. at 285-289.

The Court found those allegations insufficient because

they failed to show the manufacturers’ “conscious . . .

and culpable participation in another’s wrongdoing.”

Smith & Wesson, 605 U.S. at 291 (quoting Taamneh, 598

U.S. at 493). The Court explained that an “ ‘ordinary

merchant’ ” can be held secondarily liable for the misuse

of its goods “only if, beyond providing the good on the

open market, he takes steps to ‘promote’ the resulting

crime and ‘make it his own.’ ” Id. at 292 (first quoting

Taamneh, 598 U.S. at 489; then quoting United States

v. Falcone, 109 F.2d 579, 581 (2d Cir.) (L. Hand, J.),

aff ’d, 311 U.S. 205 (1940)) (brackets omitted). “Mexico’s

lead claim” was “that the manufacturers elect to sell

guns to, among others, known rogue dealers” who made

subsequent illegal sales to traffickers. Id. at 294. This

Court found it “far from clear that such behavior, without more, could ever count as aiding and abetting under

[the Court’s] precedents.” Ibid.

In explaining that skepticism, the Smith & Wesson

Court discussed Direct Sales Co. v. United States, 319

U.S. 703 (1943), as a quintessential example of aidingand-abetting liability imposed on the seller of a legal

good, and the Court contrasted the facts of Direct Sales

with the allegations in Smith & Wesson itself. See 605

U.S. at 292-295. The defendant morphine distributor in

Direct Sales had “ ‘actively stimulated’ ” a small-town

doctor’s industrial-scale morphine purchases “by giving

him special discounts for his most massive orders and

using ‘high-pressure sales methods.’ ” Id. at 292 (quoting Direct Sales, 319 U.S. at 705, 711). The distributor

“ ‘not only knew of and acquiesced’ in” the doctor’s illegal morphine distribution “but ‘joined both mind and

hand with him to make its accomplishment possible.’ ”

Id. at 293 (quoting Direct Sales, 319 U.S. at 713) (brack-

ets omitted). The complaint in Smith & Wesson, by contrast, “repeatedly state[d] that the manufacturers treat

rogue dealers just the same as they do law-abiding

ones—selling to everyone, and on equivalent terms.”

Id. at 295. The Court observed that, even if Mexico had

adequately alleged that the defendant manufacturers

had sold to identified rogue dealers, treating such sales

as sufficient for aiding-and-abetting liability “would

stretch the bounds of [the Court’s] caselaw.” Ibid.

The Court in Smith & Wesson found it unnecessary

to resolve that question definitively because Mexico’s

failure to link the manufacturers to specific rogue dealers independently doomed its claim. 605 U.S. at 295296. The Court held that, although Mexico’s complaint

plausibly alleged that (a) the defendant manufacturers

knew that some of their dealers had “routinely violate[d] the law,” and (b) the manufacturers could have

done more to identify those “rogue dealers” and terminate sales to them, the complaint did not plausibly allege that (c) the manufacturers actually knew who the

“bad-apple dealers” were. Ibid. But the Court’s discussion of Direct Sales supports the understanding that,

even when a seller of lawful goods knows that particular

identified customers will use the goods illegally, the

seller’s continued sales to those customers on the same

terms that it sells to others does not give rise to secondary liability for the customers’ misconduct.

D. The Court Of Appeals Erred In Holding Cox Contributorily Liable For Its Subscribers’ Infringement

1. Under the foregoing principles, the court of appeals erred in upholding the jury’s verdict against Cox.

Cox did not “encourag[e], solicit[], or advis[e] the commission of ” any user’s direct infringement as “would

normally support an aiding-and-abetting claim.” Taam-

neh, 598 U.S. at 500. Cox did not, for example, explicitly

or implicitly market its services as particularly well suited

for infringement. Cf. Grokster, 545 U.S. at 937-938; see

Br. in Opp. 9 (acknowledging that inducement is not at issue). Nor can culpable intent be inferred from the nature

of the services that Cox provides, since internet access has

myriad non-infringing uses. Cf. Sony, 464 U.S. at 442.

To be sure, the ways of demonstrating culpable intent that the Court identified in Grokster and Sony are

not necessarily exclusive. But while this Court has left

open the possibility that particular plaintiffs might find

alternative ways of proving a defendant’s intent to bring

about violations of law, the Court has made clear that

such intent is required for common-law contributory liability. Here, neither Sony nor the court of appeals has

identified any other sound basis for inferring that Cox

“participate[d] in” infringing conduct “so as to help

make it succeed. ” Taamneh, 598 U.S. at 493 (citation

and internal quotation marks omitted). The court of appeals thought that Cox’s intent to promote infringement

could be inferred from Cox’s continued provision of services with “knowledge that the recipient,” i.e., a “specific user[],” would “use [the service] to infringe copyrights.” Pet. App. 27a-28a; accord Br. in Opp. 19; Sony

Supp. Br. 4. That analysis is misconceived.

As an initial matter, the court of appeals overstated

the specificity of Cox’s knowledge. The “notices of past

infringement” (Pet. App. 23a) that Cox received made

Cox aware of infringement on particular accounts; they

did not identify the specific infringing users of Cox’s

services. See C.A. App. 509-510. The accounts that

triggered the most infringement notices generally belonged to hotels, hospitals, apartment buildings, universities, and regional ISPs serving hundreds, thousands,

or even tens of thousands of individual users. Id. at 663664.

Even if Cox had known about specific users’ plans, a

seller’s knowledge that a particular buyer plans to misuse a product with substantial legitimate uses, without

more, does not support an inference of the seller’s culpable intent. As Sony emphasizes (Supp. Br. 4), Cox

may have retained those users despite their infringing

activity because Cox derived income from those users

on the same terms that it derives income from noninfringing accounts. Pet. App. 20a. In those circumstances, the continued provision of services at most

shows Cox’s “indifferen[ce]” to infringement, Smith &

Wesson, 605 U.S. at 297 (citation omitted; brackets in

original); it does not show that Cox culpably intended to

participate in infringement or wished to bring it about.

The Court in Grokster did not treat the defendants’

“mere knowledge * * * of actual infringing uses” as

sufficient for liability, but instead emphasized the defendants’ demonstrated “intent to promote infringing

uses.” 545 U.S. at 931, 937. And the court of appeals’

theory mirrors the one this Court rejected in Taamneh.

There too, the defendants continued to provide communications services to specific users who were allegedly

known to misuse the services. Yet the defendants’ “alleged failure to stop ISIS from using the[ir] platforms”

fell “far short of plausibly alleging” aiding and abetting.

Taamneh, 598 U.S. at 500, 505. Cox’s continued provision of internet access while failing to terminate identified infringing accounts likewise does not demonstrate

the culpable intent that is required for contributory liability.

The Taamneh plaintiffs identified no common-law

authority for imposing liability on a company “for

merely failing to block * * * criminals despite knowing

that they used the company’s services.” 598 U.S. at 501

n.14. Sony identifies no such authority either. If Cox’s

indifference to infringement were sufficient to trigger

contributory liability, all service providers—from electric utilities to phone companies—might face liability

for declining to terminate service after receiving notice

that a specific customer was engaged in illegal activity.

Sony dismisses (Supp. Br. 6; see Br. in Opp. 21-22)

Taamneh as “a non-copyright case.” But contributory

problem” of secondary liability, Sony, 464 U.S. at 435,

and this Court has long looked to “common law principles” in similar cases, Grokster, 545 U.S. at 930; see Kalem, 222 U.S. at 62-63. Indeed, because the Copyright

Act does not explicitly address contributory liability,

the rules that govern such liability in copyright cases

can only be drawn from common-law principles. It

would be anomalous to hold that communicationsservice providers have a greater duty to prevent use of

their services to commit copyright infringement than to

prevent use of their services to facilitate terrorist acts,

at least absent legislative direction to that effect.

Sony also asserts (Supp. Br. 6) that Taamneh did not

involve allegations that the social-media platforms “continu[ed] to serve specific users that they knew were

using their services to facilitate terrorism.” On the contrary, Taamneh involved precisely such allegations,

Gonzalez, 2 F.4th at 883; p. 18, supra, which the plaintiffs highlighted before this Court, Taamneh Br. at

5-6, Taamneh, supra (No. 21-1496). And the Taamneh

Court emphasized the plaintiffs’ failure to identify any

common-law principle “that would require

***

communication-providing services to terminate custom-

ers after discovering that the customers were using the

service for illicit ends.” 598 U.S. at 501.

Nothing in Taamneh supports Sony’s assertion

(Supp. Br. 6) that knowledge of which users had promoted ISIS, coupled with an internal email criticizing

the Antiterrorism Act, would have “almost certainly”

changed the outcome. The Taamneh Court rejected

secondary liability because providing social-media “infrastructure” to known bad actors on generally applicable, content-“agnostic” terms did not constitute culpable participation in a terrorist attack as something that

the platforms “ ‘wishe[d] to bring about.’ ” 598 U.S. at

498-499 (citation omitted; brackets in original). Cox’s

provision of internet services on equal terms to all subscribers, including those whose accounts were linked to

known infringement, likewise does not demonstrate culpable intent to participate in users’ wrongdoing.

2. Citing United States v. Thompson, 539 Fed.

Appx. 778 (9th Cir. 2013), the court of appeals stated

that “[l]ending a friend a hammer * * * with knowledge

that the friend will use it to break into a credit union

ATM” is criminal aiding and abetting. Pet. App. 27a.

But the defendant in Thompson did not merely lend a

friend a hammer. Rather, he joined a criminal conspiracy to commit bank larceny and delivered the hammer

to a Denny’s parking lot at 1 a.m. while the offense

was in progress. U.S. Br. at 59, Thompson, supra (No.

10-5381). In any event, an individual who loans a hammer for a friend’s known criminal activity evinces

significantly greater culpability than a store that sells

hammers to all comers without excluding known

thieves—the more apt analogy here.

Sony cites (Br. in Opp. 17; Supp. Br. 3) this Court’s

contributory-patent-infringement decision in Henry,

supra. There, the Court permitted the plaintiff to maintain a suit against defendants who had sold “ink suitable

for use upon [a patented] mimeograph with knowledge”

that the buyer (Skou) planned to use the ink in derogation of a patent-license condition requiring that Skou

operate the mimeograph with ink made by the patentee.

224 U.S. at 11. The Court held that the license condition

was valid and that Skou’s use of the defendants’ ink to

operate the mimeograph would infringe the plaintiff ’s

patent. Id. at 31-32, 49. It further held that, assuming

the facts certified by the lower court, the defendants

could be held contributorily liable for that infringement.

Id. at 48-49. Sony reads Henry to support liability

whenever a defendant seller knows that a particular

buyer will use a product to infringe because the product

there—“ink—also had noninfringing uses.” Br. in Opp. 17

(citation omitted).

By its terms, however, Henry requires proof of “intent and purpose” to infringe as a prerequisite to secondary liability. 224 U.S. at 48. The Court reserved a

“presumption” of intent for circumstances where goods

were “only adapted to an infringing use,” or where that

use was the “most conspicuous” one and the defendant

had advertised it. Ibid. The Court found that the requisite “purpose and intent” existed in Henry because

the defendant knew that the buyer would only use the

ink in an infringing way. Id. at 49. Here, by contrast,

even the known infringers among Cox’s subscribers

presumably use Cox’s internet service for lawful purposes as well.

In any event, Henry represents a “high-water mark”

in this Court’s development of contributory-patentinfringement doctrine. Dawson, 448 U.S. at 190. Current patent law makes clear that knowledge of a buyer’s

plans standing alone does not support liability. See

pp. 14-17, supra. And the rationale on which the Henry

Court found potential direct infringement—i.e., that

the manufacturer of the patented mimeograph could require its licensees to use ink purchased from the patentee, see 224 U.S. at 31-32—was later “overruled” by

Motion Picture Patents Co. v. Universal Film Mfg. Co.,

243 U.S. 502, 518 (1917); see Dawson, 448 U.S. at 190192; Carbice Corp. of Am. v. American Patents Dev.

Corp., 283 U.S. 27, 30-33 (1931).

The court of appeals also invoked the tort-law principle that one “is presumed to intend the substantially

certain results of his acts.” Pet. App. 27a; accord Br. in

Opp. 16 & n.3, 19. That approach, however, has logical

implications that extend well beyond the legal rule that

Sony advocates. When particular goods or services can

be used in both lawful and unlawful ways, a high-volume

seller may often be “substantially certain” that some of

its customers will use the goods or services to commit

illegal acts. E.g., Sony, 464 U.S. at 439. But the Court

has made clear that this sort of knowledge is an insufficient basis for holding the seller contributorily liable for

its customers’ unlawful conduct. See Taamneh, 598 U.S.

at 506; Smith & Wesson, 605 U.S. at 296-297.

Sony argues (Supp. Br. 4) that this case is different

because Cox had knowledge not simply that some unspecified subscribers would infringe, but that infringement would occur on particular identified accounts.

But that line cannot reasonably be derived from the

principle that a person “is presumed to intend the substantially certain results of his acts,” Pet. App. 27a, and

it is not the line this Court has drawn. Instead, the Court

has held that, when a business sells goods or services

that can be used in both lawful and unlawful ways, the

business can be held secondarily liable for its customers’ misconduct only if it has “take[n] steps to ‘promote’

the resulting [violation] and ‘make it [its] own.’ ” Smith

& Wesson, 605 U.S. at 292 (citation omitted).

Sony’s only proffered direct evidence of intent consists of internal Cox documents that could be read “as

displaying contempt for laws intended to curb online infringement.” Pet. App. 28a; see Sony Supp. Br. 4. In

appropriate circumstances, “internal communications”

may demonstrate an “unlawful purpose” to infringe.

Grokster, 545 U.S. at 938. But Sony cannot make that

showing here. In context, the central email—which references the DMCA in crude terms—reflects an employee’s frustration with receiving a deluge of automated copyright infringement notices. C.A. App. 1495.

And even if a subordinate Cox employee mistakenly believed that the relevant DMCA provision establishes legal requirements rather than simply providing a safe

harbor (see pp. 28-29, infra), that belief would not establish the culpable intent required for contributory liability. Sony cites no evidence that Cox employees preferred that customers infringe, let alone that they encouraged customers to do so.

Sony alludes (Supp. Br. 7-8) to the DMCA’s safe harbor for “service provider[s]” that, inter alia, “adopt[]

and reasonably implement[] * * * a policy that provides

for the termination in appropriate circumstances of subscribers * * * who are repeat infringers.” 17 U.S.C.

512(a) and (i)(1)(A). That provision does not support liability here. Congress made clear that the failure to

satisfy the safe harbor “shall not bear adversely” on

“any other defense,” including “that the service provider’s conduct is not infringing.” 17 U.S.C. 512(l); see

H.R. Rep. No. 796, 105th Cong., 2d Sess. 73 (1998)

(“Section 512 is not intended to imply that a service provider is or is not liable as an infringer either for conduct

that qualifies for a limitation of liability or for conduct

that fails to so qualify.”).

Sony asserts (Supp. Br. 8) that rejecting liability

here would “render the safe-harbor a nullity.” But Congress enacted Section 512 to ensure that conduct falling

within the safe harbor would not give rise to damages

liability for contributory copyright infringement, regardless of how common-law liability principles might

develop in the future. The safe harbor continues to

serve that purpose. To the extent Sony would treat Section 512 as evidence of what those common-law rules are

or should be, it asks the Court to draw the very inference that Section 512(l) disapproves.

The DMCA was enacted in 1998, when the internet

was in its infancy. Congress accordingly proceeded cautiously, including by expressly disavowing any implication that conduct falling outside the safe harbor is infringing. Where (as here) a service provider declines to

invoke the safe harbor, Section 512 is simply irrelevant

to a court’s determination about contributory liability

under common-law principles.

E. The Court Of Appeals’ Decision Threatens Universal Internet Access

The court of appeals’ sweeping view of contributory

consequences. Under the decision below, so long as an

ISP knows that a specific account is “substantially certain to infringe,” the ISP is liable for all direct infringement committed on that account. Pet. App. 22a; see id.

at 27a. That approach would give ISPs a powerful incentive to err on the side of termination after receiving

a notice of infringement for a particular account. While

Sony suggests (Supp. Br. 7) that the DMCA’s safe harbor mitigates those risks, the scope of that provision is

unsettled. 4 Nimmer § 12B.10. Given the size of the potential damages, the safe harbor does not fully ameliorate concerns over universal internet access.

Terminations of internet service do not only affect

infringers. The decision below does not distinguish between a single user’s account, a family account with

multiple members, a university account shared by thousands of students, or a regional ISP that uses Cox’s services to provide internet access to tens of thousands on

a single account. See C.A. App. 664. The decision below

creates a particular disincentive to ISPs’ continued provision of internet service to large customers, given the

near inevitability that at least one user will infringe.

Losing internet access is a serious consequence. The

internet is “the modern public square,” Packingham v.

North Carolina, 582 U.S. 98, 107 (2017), and has become

“inescapable” in today’s society, Moody v. NetChoice,

LLC, 603 U.S. 707, 716 (2024). This Court has cautioned

against unduly “expand[ing] the protections afforded

by the copyright” when faced with “major technological

innovations.” Sony, 464 U.S. at 431. That concern reinforces the conclusion that, in defining the scope of

ISPs’ obligations to police their customers, the Court

should not expand common-law contributory copyright

liability in a way that would “stretch the bounds of [the

Court’s] caselaw.” Smith & Wesson, 605 U.S. at 295.

II. PROOF THAT AN INTERNET SERVICE PROVIDER

KNEW OF ITS CUSTOMERS’ COPYRIGHT INFRINGEMENT DOES NOT ESTABLISH THAT THE PROVIDER

ACTED WILLFULLY IN CONTINUING TO PROVIDE

SERVICE

The court of appeals also erred in upholding an instruction that permitted the jury to award enhanced damages

for willful infringement based on Cox’s knowledge of its

subscribers’ infringement.

A. The Copyright Act authorizes enhanced statutory

damages of up to $150,000 (rather than $30,000) per infringed work where a violation was committed “willfully.” 17 U.S.C. 504(c)(2); see 17 U.S.C. 504(c)(1).

Here, the jury was instructed that Cox’s conduct was

willful if “Cox had knowledge that its subscribers’ actions constituted infringement of plaintiffs’ copyrights,

acted with reckless disregard for the infringement of

plaintiffs’ copyrights, or was willfully blind to the infringement of plaintiffs’ copyrights.” C.A. App. 804.

That instruction was erroneous. In civil cases, willfulness generally requires either knowledge or reckless

disregard of the fact that one’s conduct is unlawful.

Safeco Ins. Co. v. Burr, 551 U.S. 47, 57 (2007); Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-126

(1985). Where the defendant’s “reading of the statute,

albeit erroneous, was not objectively unreasonable,” the

violation is not willful. Safeco, 551 U.S. at 69.

That inquiry focuses on the defendant’s awareness of

its own legal violation. Willfulness requires that the

defendant “knew or showed reckless disregard for the

matter of whether its conduct was prohibited” by law.

Trans World Airlines, 469 U.S. at 126 (emphasis added;

citation omitted). “If [a defendant] acts reasonably in determining its legal obligation, its action cannot be deemed

willful.” McLaughlin v. Richland Shoe Co., 486 U.S. 128,

135 n.13 (1988); accord 5 Nimmer § 14.04[B][3][a] (“[O]ne

who has been notified that his conduct constitutes copyright infringement, but who reasonably and in good

faith believes the contrary, is not ‘willful’ for these purposes.”) (citation and footnote omitted).

That distinction is especially salient where, as here,

a defendant is held secondarily liable for violations committed by another. Sony did not allege or prove that

Cox had directly infringed Sony’s copyrights. The challenged instruction nevertheless allowed the jury to find

that Cox had committed willful violations, based on

Cox’s knowledge that its subscribers’ actions were unlawful, even if Cox reasonably and in good faith believed

that it could lawfully continue to serve those subscribers. That result is incompatible with the willfulness inquiry’s ordinary focus on the defendant’s understanding of its own conduct.

Sony argues (Br. in Opp. 29) that recklessness is a

form of willfulness, and that “materially contribut[ing]

to conduct that the defendant knew was against the law

* * * is the definition of recklessness.” Accord BMG

Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881

F.3d 293, 313 (4th Cir. 2018). That contention is mistaken. An alleged contributory infringer could hold a

reasonable, good-faith belief that its own conduct is lawful, even if it knows that the direct infringer’s conduct

is not. Here, for example, Cox could have reasonably

(and, in the United States’ view, correctly) believed that

failing to terminate known copyright infringers does

not constitute contributory copyright infringement, so

long as Cox’s services had substantial lawful uses and

Cox did not encourage infringing conduct. If Cox held

that belief in good faith, its continued provision of ser-

vice to identified infringing accounts would not reflect

recklessness as to the legality of Cox’s own conduct.

The jury instruction elides that distinction.

B. The jury instruction also “virtually obliterates

any distinction between willful and nonwillful violations” in contributory-infringement cases. McLaughlin, 486 U.S. at 132-133. A willfulness finding quintuples the statutory-damages cap from $30,000 to $150,000

per infringed work. 17 U.S.C. 504(c)(1) and (2). As this

Court has observed in the patent context, a willfulness

standard reserves enhanced damages for “egregious

cases.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S.

93, 106 (2016). Willfulness is also the standard for criminal copyright infringement, 17 U.S.C. 506(a)(1), with

the civil and criminal standards sometimes said “to

approximate” one another. Paul Goldstein, Goldstein on

The jury instruction here would make willfulness the

rule, not the exception, in contributory-infringement

cases. In the patent context, liability for contributory

infringement requires knowledge that the primary conduct “constitute[s] patent infringement.” Global-Tech,

563 U.S. at 766. In that context, the instruction that was

given here would allow a jury to find willfulness in every

case of contributory liability.

Sony contends that contributory copyright infringement requires only “knowledge of the infringing activity,” while willfulness requires knowledge that those

“actions constituted infringement,” so the instruction

here would not cause the two standards to collapse. Br.

in Opp. 30 (citations omitted); accord Sony Supp. Br. 8.

But service providers who are aware of infringing activ-

ity using their services (e.g., subscribers sharing the latest hit music online) will typically know that the activity

is infringing.

Elsewhere, moreover, Sony appears to recognize

that contributory copyright infringement requires not

just knowledge of infringing activity, but “an intent to

infringe.” Br. in Opp. 17 (quoting Grokster, 545 U.S. at

932). Here, in upholding the jury verdict on contributory liability, the court of appeals imputed culpable intent to Cox based on Cox’s “knowledge” that particular

subscribers would use its service “to infringe copyrights.” Pet. App. 27a. On that understanding, contributory liability does require knowledge that the primary

conduct constitutes infringement, so that every instance of contributory infringement would be willful under the jury instruction here. That result is incompatible

with Congress’s two-tiered statutory-damages scheme.

CONCLUSION

The court of appeals’ judgment should be reversed.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

YAAKOV M. ROTH

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

AARON Z. ROPER

Assistant to the

Solicitor General

DANIEL TENNY

SARAH N. SMITH

Attorneys

SEPTEMBER 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.