Cox v. Sony and the Future of Patent Contributory Liability: How a Copyright Case Could Reshape Patent Law

by Dennis Crouch

The Supreme Court’s pending decision in Cox Communications v. Sony Music is a copyright case focused on internet service provider liability, but it also has the potential of reshaping patent law doctrine. Briefing is ongoing in the merits case which will be likely decided in Spring 2026. Cox Communications, Inc. v. Sony Music Entertainment, No. 24-181 (U.S. cert. granted July 1, 2025). The case centers on whether an ISP can be held liable for contributory copyright infringement for continuing to provide internet access to subscribers it knows are repeat infringers, without proof of specific affirmative conduct to promote infringement. Adjudged infringer Cox argues that the Fourth Circuit’s approach in the case uses a diluted standard for “material contribution” that threatens to unravel decades of carefully calibrated secondary liability doctrine. The music industry counters that Cox’s conduct went beyond passive provision of service – by knowingly maintaining internet access for accounts that received tens of thousands of infringement notices, Cox substantially assisted ongoing piracy and should face liability.

While directly focused on copyright, the case is likely to have direct impact on patent law doctrine as well.  This spillover stems from the recognized “historic kinship” between patent and copyright contributory liability standards.  The two questions presented as:

1. Whether knowledge plus continued provision suffices for contributory liability; and
2. Whether willfulness requires awareness that one’s own conduct is unlawful (i.e., infringement).

Answers to both questions will almost certainly influence how courts interpret parallel doctrines under under both § 271(b) (inducement) and § 271(c) (contributory infringement) as well as enhanced damages for willful infringement.

The Copyright Act of 1976 contains no express provision defining secondary liability. In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) and later in See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), the Supreme Court expressly adopted elements from patent law’s contributory infringement and inducement statutes into copyright law. In Sony, the court held that manufacturers of products “capable of substantial noninfringing uses” cannot be held liable for contributory infringement based solely on knowledge that some users might infringe. In Grokster the court established that copyright inducement theory requires “clear expression or other affirmative steps taken to foster infringement” while “mere knowledge of infringing potential or of actual infringing uses would not be enough” for liability.

A key difference in this new case is the notice provided to Cox – particularizing individuals repeatedly using Cox services in order to infringe.  The question then might collapse into whether continued provision of services constitutes inactionable nonfeasance (failing to prevent infringement) or infringing misfeasance (facilitating the infringement).  Certainly, internet service is a staple – but there is no request to ban internet access generally. Rather, the setup here is that Cox knew that specific accounts were being used primarily for infringement, not merely that internet service was capable of both lawful and unlawful uses.

I expect that the rights holders will also invoke the Restatement (Second) of Torts § 876, which provides that one who knows that his conduct will assist another’s harmful conduct can be held liable for aiding and abetting. Under this framework, intent can be inferred from knowledge plus substantial certainty of harm, not just from explicit inducement.  This could be seen as a separate theory from inducement,  but SCOTUS has not foreclosed other paths to secondary liability based on knowledge and substantial assistance.

I expect that the Supreme Court will reverse the Fourth Circuit – limiting secondary liability and also raising the standard for willfulness to better align Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016).

A key case on point is Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023) where the court wrote that “substantial assistance” and “conscious, voluntary, and culpable participation” for aiding-and-abetting liability under a non-copyright statute.  The U.S. amicus brief supports reversal and argues that secondary liability should require “conscious and culpable” participation.

A brief filed by Prof. Charles Duan warns that “this case will almost certainly become a leading precedent on patent inducement” and cautions that diluting the “specific, unambiguous, affirmative act” requirement for material contribution would “trap future generics in an impossible regulation–patent bind” and make “marketing of generic drugs . . . a minefield” under expansive inducement theories.

Duan also identifies what he sees as problematic patent cases – that too easily permit secondary liability:

As noted, Amarin’s case is pending before the Supreme Court.  The court has requested the views of the Solicitor General in the case.  Although there is no timeline for those views, I expect that they’ll be provided later this fall unless the DOJ decides to await the outcome of Cox.

Duan’s brief also tells the story of some older cases that were overly expansive.  Weed Chain Tire Grip Co. v. Cleveland Chain & Manufacturing Co., 196 F. 213 (1910) (finding contributory liability even where defendants specifically instructed purchasers to avoid patent infringement, based merely on the product being “capable of being used” to infringe and “violation of the spirit of that patent”); and Henry v. A.B. Dick Co., 224 U.S. 1 (1912) (similarly finding contributory infringement for selling products with both infringing and noninfringing uses). Duan notes that these early expansive decisions were problematic that they prompted congressional reaction (Clayton Antitrust Act of 1914) and subsequent overruling in Motion Picture Pats. Co. v. Universal Film Mfg. Co., 243 U.S. 502 (1917).