Abstract

The Fourth Circuit’s decision to impose contributory liability Cox Communications, Inc. rests on a fundamental misapprehension of Cox’s role as a “conduit” Internet Service Provider. Conduits merely transmit data between endpoints; unlike content-hosting platforms like YouTube or search engines like Google, conduits do not store, curate, or control user content. They merely transmit data on behalf of third parties, and they have no ability to monitor the data they transmit. By treating Cox’s passive provision of Internet access and data transmission as a knowing, material contribution to infringement, the Fourth Circuit collapsed the crucial legal distinction between conduits and hosts, extending contributory liability into an area where no court or legislature has ever placed it.

This unprecedented step disregards decades of precedent that establishes only two bases for contributory liability. First, traditional contributory liability involves ongoing infringement, and it turns on a defendant’s actual ability to prevent or remediate the infringement while it is occurring. Second, inducement liability involves future infringement, and it turns on the defendant’s active inducement of such infringement. Neither applies here.

The Fourth Circuit compounded this error by conflating certain requirements of the safe harbors from the DMCA with the elements of contributory liability. The DMCA’s safe harbor regime sets conditions for immunity, but it does not define the baseline scope of liability. By treating Cox’s alleged failure to meet DMCA conditions—such as terminating repeat infringers—as substantive evidence of contributory infringement, the Fourth Circuit improperly converted a limitation on statutory immunity into a standard for fault. That reasoning erases the distinction between the availability of a statutory defense and the existence of underlying liability, effectively imposing obligations on conduits that Congress chose not to impose.

Finally, the Fourth Circuit’s approach risks destabilizing copyright law by vastly expanding secondary liability without clear doctrinal or practical limits. If simply providing Internet access with knowledge of past infringement leads to contributory liability, then every conduit—including broadband providers, cell phone carriers, and even electric or utility companies that facilitate network use—could face liability whenever users misappropriate copyrighted works. That result is incompatible with this Court’s clear requirement that contributory liability rest on affirmative steps to foster such infringement, not on mere failure to terminate service.

Accordingly, the Court should reverse on Question One and reaffirm that conduits do not contribute to infringement merely by providing Internet access, absent inducement or other affirmative conduct.

Document Type

Court Filing

Publication Date

2025

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