In Cox Communications, Inc. v. Sony Music Entertainment, No. 24–171 (March 25, 2026), the concurring opinion cited Restatement of the Law Second, Torts §§ 8A and 876 and Restatement of the Law Third, Torts: Liability for Economic Harm § 28 in arguing that secondary liability for copyright infringement could include liability for aiding and abetting an infringement.
In that case, copyright owners sued an internet service provider that provided internet connections to subscribers who were known copyright infringers, alleging that the provider was secondarily liable for the infringers’ actions because it continued to provide the infringers with internet access despite receiving notifications that the internet protocol addresses of those subscribers were engaging in infringing conduct. The U.S. District Court for the Eastern District of Virginia entered judgment on a jury verdict for the copyright owners, finding that they prevailed as to both contributory and vicarious liability, and that the provider’s infringement was willful. The U.S. Court of Appeals for the Fourth Circuit reversed in part as to the findings on vicarious liability, vacated the damages award, and remanded for the jury to reassess damages based only on contributory liability.
Justice Thomas, delivering the opinion of the U.S. Supreme Court, reversed the Fourth Circuit’s judgment and remanded, holding that the provider of a service was contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement, which could be shown “only if the party induced the infringement or the provided service [wa]s tailored to that infringement.” A provider, the Court explained, induced infringement if it actively encouraged infringement through specific acts, such as by promoting software as a tool to infringe copyrights, but “mere knowledge that a service w[ould] be used to infringe [wa]s insufficient to establish the required intent to infringe.” The Court concluded that the provider was not contributorily liable for infringement because it simply provided internet access, which could be used for many other purposes.
Justice Sotomayor, in a concurring opinion joined by Justice Jackson, agreed with the majority that “neither of the two prior theories of secondary liability” covered the provider’s conduct, but argued that the majority erred in finding that those theories were or should be the only two forms of secondary liability for copyright infringement. The concurring opinion pointed out that aiding and abetting liability, as derived from the common law, could also hold an internet service provider liable for copyright infringement committed on its network if it was proven that the provider intended to aid the infringement.
Justice Sotomayor cited Restatement of the Law Second, Torts, § 8A, Comment b, in explaining that the intent to infringe under a common law aiding-and-abetting theory could be found if “the actor kn[ew] that the consequences [we]re certain, or substantially certain, to result from [the] act, . . . and still [went] ahead.” As an example, Justice Sotomayor cited Restatement of the Law Second, Torts § 876(b) and Restatement of the Law Third, Torts: Liability for Economic Harm § 28, Comment c, in noting that a person who gave a gun to another, knowing with certainty that the other person would shoot someone with it, could be held liable for aiding and abetting the shooting, even if that person did not desire for anyone to be shot. The concurring opinion observed that, in this case, the record could not support finding the necessary intent for aiding-and-abetting liability to attach, because the provider’s conduct in merely supplying internet services to its customers was not inherently culpable, and the copyright owners did not show that the provider intended to aid specific instances of infringement.
Read the full opinion here.