What’s at Stake
By Jorge Roig
In a few days, the Supreme Court will hear oral argument in Cox Communications, Inc. v. Sony Music Entertainment, a case that asks whether an Internet service provider may be held secondarily liable for copyright infringement simply for continuing to provide service after receiving infringement notices. At first glance, it seems like a limited fight between sophisticated corporate entities over music piracy and subscription accounts. But a closer look reveals how an unfortunate holding could have broad implications on the architecture of speech in the digital age – and whether the marketplace of ideas can survive the collision between copyright power and expressive freedom.
For over forty years, the Court has insisted on a careful balance. In Sony Corp. v. Universal City Studios (1984) the Court held that technology with “substantial non-infringing uses” may not be strangled simply because some users commit infringement. Then, in MGM Studios v. Grokster (2005), the Court made clear that secondary liability requires intentional, affirmative steps taken to promote infringement, not merely awareness of wrongdoing. That standard reflects a constitutional equilibrium: protect creative incentives without suffocating innovation and access.
The Fourth Circuit’s rule in Cox breaks that equilibrium. Under its reasoning, knowledge alone, plus continued service, can support contributory liability. If that becomes the national rule,internet service providers (ISPs) – fearful of massive statutory damages – will act not as neutral conduits but as copyright sheriffs. And when sheriffs tremble, they over-police. They shut doors before asking questions. They choose safety over liberty.
What happens then? A chilling breeze sweeps through the creative ecosystem. Fair use – the doctrine that protects commentary, criticism, education, parody, and analysis – becomes a whisper rather than a shield. Already, creators on platforms such as YouTube report removals and demonetization of videos that are plainly transformative and critical. According to reports in Broadband Breakfast and Medium, in 2023, more than a billion copyright claims were processed on YouTube, the vast majority triggered automatically. Many creators admit they now self-censor to avoid losing their channels. That is how freedom erodes: silently, algorithmically, without headlines.
And what of the First Amendment? The Court reminded us in Packingham v. North Carolina (2017) that the Internet is today’s public square. But what good is a public square if the gatekeeper’s hand trembles at every knock on the door? What kind of democracy is built on silence born of fear?
Supporters of the Fourth Circuit’s approach argue that large ISPs profit from infringement and must bear responsibility. They invoke the ongoing reality of online piracy and the importance of copyright enforcement. Those concerns are real. But enforcement cannot come at the price of collapsing the fair-use space: a space necessary for new ideas to emerge and old ones to evolve. Copyright law was never intended to build a wall around culture. Copyright law was meant to incentivize and sustain a living, breathing creative society.
Will the Court preserve the balance struck in Grokster or surrender to a regime where intermediaries preemptively erase expression to protect themselves? One path leads to innovation, dissent, and a public square vibrant with remix, critique and transformation. The other to silence disguised as caution.
The Supreme Court must reaffirm the requirement of intentional inducement and reject liability built on mere knowledge. If not, we may soon find that the lights in the public square dimmed without notice, that voices disappeared not by force but by frightened hands at the switch.
Jorge Roig is an associate professor of law at Touro Law Center. He used Artificial Intelligence (AI) to assist with writing this article.
You must be logged in to post a comment.