The decision’s consequences would be far-reaching, transforming copyright law into a liability trap that throttles internet access and threatens America’s innovation economy.
Imagine losing your internet connection because a bot flagged ordinary network activity to your service provider as potentially illegal. This would be the fallout if the U.S. Supreme Court agrees that internet service providers can be held liable for their customers’ copyright infringement.
The court will consider that question in Cox Communications v. Sony Music Entertainment on Dec. 1. In that case, music companies argued that an internet service provider contributed to infringement by not cutting off users for allegedly downloading copyrighted works. A jury agreed with the music companies’ argument, and so did the U.S. Court of Appeals for the Fourth Circuit.
If left standing, the decision’s consequences would be far-reaching, transforming copyright law into a liability trap that throttles internet access and threatens America’s innovation economy.
Internet providers receive thousands of so-called “takedown” notices every day, many generated by bots. Empirical research shows that a large portion of these are inaccurate—often automated and riddled with errors. Some target activity that’s plainly legal—such as using snippets of code, training artificial intelligence models, or creating parody and fan fiction protected by the doctrine of fair use.
Yet the appeals court treated every notice as if it were proof of wrongdoing. Under this interpretation, small and midsize internet service providers, cloud-computing firms, web-hosting services, and AI startups would all face crushing liability for users’ actions they can’t monitor or control. The rational business move won’t be to investigate. Facing damages of up to $150,000 per alleged violation, companies would simply cut off accused users.
The result is that universities, businesses, and even entire communities could suddenly find themselves without access to internet-based services—or even to the internet itself. This danger is particularly acute for the more than one-third of Americans who live in areas served by only a single internet provider.
But this is not how copyright law is supposed to work. For decades, the Supreme Court has drawn a careful line between genuine bad actors and companies that provide technologies with “substantial noninfringing uses.”
In the 1984 “Betamax” case, the court refused to kill off the VCR even though people could use it to make illegal copies of movies. Two decades later, in the Grokster case over peer-to-peer file sharing, the court said secondary liability applies only when a company takes affirmative steps to induce infringement.
The Fourth Circuit ignored that line of Supreme Court precedent. It imposed liability not for encouraging infringement, but for failing to cut off internet access fast enough after receiving accusations—turning inaction into culpability. Worse, it labeled this supposed “contributory infringement” as “willful,” multiplying potential damages fivefold.
The internet is not a luxury good. It’s the infrastructure of modern life—the way people work, study and connect. Cutting off access based on unverified claims is like shutting off someone’s electricity because their neighbor’s music is too loud.
If left to stand, the Fourth Circuit’s decision would chill creativity and entrepreneurship. Startups that build on existing works—for example, training AI systems to develop lifesaving medicines or creating transformative software—would face a new kind of censorship: algorithmic copyright enforcement outsourced to the companies that deliver our connectivity. Large incumbents could weaponize this liability to throttle emerging competitors before they ever reach the market.
Congress foresaw these dangers when it enacted the Digital Millennium Copyright Act in 1998. The DMCA’s “safe harbor” was meant to encourage cooperation between rightsholders and service providers without turning the latter into copyright police. The Fourth Circuit’s ruling flips that logic on its head. In doing so, it replaces the market’s invisible hand with a heavy legal one.
The Supreme Court should restore the balance. Innovation and free expression depend on a clear rule: companies that provide access to lawful technologies and communications should not be punished for the misdeeds of others.
America’s digital future shouldn’t hinge on the accuracy of a bot’s infringement notice.
Benjamin W. Berkowitz is an attorney at Keker Van Nest & Peters in San Francisco. Editor's Note: Berkowitz submitted an amicus brief in support of petitioners in Cox Communications v. Sony Music Entertainment on behalf of Engine Advocacy and a diverse coalition of organizations dedicated to technology entrepreneurship.
Reprinted with permission from the Nov. 24, 2025 edition of Law.com.