Contributory Copyright Infringement in a Post-Cox World

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“The Supreme Court just killed ‘knowledge plus material contribution’ as a basis for contributory liability, rewriting the rules for secondary copyright infringement,”^[1] headlines one reaction to the Supreme Court’s decision in Cox Communications v. Sony Music Entertainment,^[2] shortly after the decision was handed down. “The practical impact of that holding is enormous,” adds that commentator.^[3] Several days later, another blogger weighed in with a similar critique.^[4] Even cautious supporters of the Court’s ruling chide its handwork for introducing “uncertainty into the workings of secondary liability across other intellectual property regimes,”^[5] among other criticisms.^[6]

This paper sets forth my own contribution to the contributory copyright infringement literature. Without disagreeing with any of those critiques, my goal here is more modest—to comment about the decision’s actual effects moving forward. Specifically, my reading is that the practical implications of the decision are less precipitous than has been generally assumed.

Secondary Liability in Copyright

First, it may be helpful to provide a brief overview of secondary liability in copyright. Secondary liability addresses when one party may be held responsible for the direct infringement of another. Absent from direct mention in the 1976 Copyright Act, this domain has remained an entirely judge-crafted area of copyright law. As a result, the ontology of secondary liability is hard to pin down. Generally, though, there are two main species of indirect liability in the law of copyright: vicarious and contributory.^[7] Vicarious liability draws from agency law, arising when a party profits from direct infringement, “while declining to exercise a right to stop or limit it.”^[8] Contributory liability—the focus of this paper—is rooted in the tort concept of enterprise liability, providing an avenue by which courts can hold liable those who knowingly assist the direct infringement of others.^[9] The Supreme Court’s decision in Cox v. Sony addressed when a party is said to have knowingly assisted a direct infringer.

The Task at Hand

Secondary liability occupies an expansive space within copyright doctrine. To encapsulate the field, the 2025 revision to Nimmer on Copyright required over 240 pages of dense analysis. No sooner did it appear, however, than the Supreme Court issued its decision in Cox v. Sony, requiring massive changes to that analysis.

The question on the table is whether Cox v. Sony, putting aside its analytic framework, as a practical matter will produce revolutionary results. To evaluate its import, the next section defines what qualifies as revolutionary. Next, this paper investigates the status of past cases to understand their thrust. It then proceeds to interrogate the standard announced in this 2026 Supreme Court case. Finally, it applies that ruling to future causes of action in this domain.

This exercise should reveal whether the majority opinion is destined to produce an upheaval of results. Alternatively, it will reveal whether the case’s upshot is simply to require courts to define the inquiry in new terms before reaching largely the same results as would have inured under the old order.

A Metric to Gauge Revolutionary Change

Let us start with the “highly successful silent motion picture entitled ‘The Son of the Sheik,’ starring Rudolph Valentino.”^[10] The film was made under license to a novel of the same name; afterward, the renewal term to that novel reverted to the author’s daughter, who assigned her interest to Raymond Rohauer. He, in turn, filed suit, claiming that post-reversion exploitation of the film violated his rights in the novel.

The Second Circuit rejected his stance.^[11] That ruling set the stage for Hollywood studios to keep films in distribution, even after the renewal in the underlying literary property reverted to third parties who objected. In reliance on the Second Circuit’s ruling against Rohauer, Universal Pictures continued to screen Alfred Hitchcock’s classic “Rear Window,” even after renewal of the short story on which it was based reverted to author Cornell Woolrich’s heirs.

Enter Sheldon Abend. Like Rohauer before him, he acquired rights to the reverted underlying property. Like his predecessor, he filed suit for copyright infringement. The difference, though, is that he prevailed before the circuit court.^[12] And, when the Supreme Court affirmed, it explicitly rejected Rohauer as good authority.^[13]

The upshot was categorical. Before Abend, defendant Killiam Shows prevailed, and there was no alternative basis on which Raymond Rohauer could make headway. After that ruling, the exact opposite state of affairs pertained—Sheldon Abend prevailed, and there was no alternative basis to excuse Universal Pictures from infringement liability.^[14]

The question on the table is whether Cox v. Sony will produce comparably revolutionary results. In other words, are there large classes of defendants who formerly would have been held culpable for contributory copyright infringement but who now, under the authority of this ruling, will altogether avoid liability?

Schematizing the Past

A Rhapsody for Gershwin

On January 9, 1965, concert artists performed the famous song “Bess, You Is My Woman Now” publicly for profit without the requisite permission from plaintiff Gershwin Publishing Company.^[15] The resulting Second Circuit decision held Columbia Artists Management, which sponsored local community concerts such as that one, liable for copyright infringement on two theories of secondary liability—vicarious liability and contributory copyright infringement.^[16] As to the latter, the court specified the elements as knowledge and material contribution.^[17]

Gershwin proved a resounding success in the annals of law. During the more than half-century after it came down, it won acceptance across the various circuits. Federal courts have cited it over 650 times, none of them negatively. By way of comparison, the Supreme Court’s Abend decision has garnered 400 citations.

Among those hundreds of cases adopting Gershwin, three of the most prominent warrant mention.

• In Fonovisa, Inc. v. Cherry Auction, Inc., the Ninth Circuit relied on Gershwin in holding the organizers of a swap meet vicariously liable and contributory infringers for the direct infringement undertaken by vendors on its site.^[18]
• In A&M Records v. Napster, the Ninth Circuit extended Fonovisa from physical space to the organizers of an online service; it again cited Gershwin in upholding vicarious liability and contributory infringement for the direct infringement undertaken by users of its website.^[19]
• In In re Aimster Copyright Litigation, the Seventh Circuit extended Napster’s reach regarding contributory infringement to an online server that offered a decentralized architecture in which the direct infringers simply exchanged copyrighted material with each other.^[20]

We will return to each of these rulings when calibrating the future effect of Cox v. Sony.

* * *

Of course, every sensible legal rule has its limits. Though hundreds of cases have upheld contributory infringement, not all those who are loosely tied to direct infringers deserve to be held liable. Past cases have exonerated defendants in a variety of postures, including an advertising agency that served as the intermediary in licensing negotiations between a copyright holder and a party eventually accused of direct infringement;^[21] selling land parcels to an alleged infringer of architectural designs;^[22] and a complaint that defendant moved a statue to a location that resulted in its being photographed more often.^[23]

Holy, Holy, Holy

Gershwin has not stood alone. Its articulation of secondary liability in the form of contributory infringement is but one instantiation of a trinity: (1) Contributory infringement is represented not only by Gershwin and its predecessors,^[24] but further garnered recognition at the Supreme Court level in 1984,^[25] with the famous Betamax ruling;^[26] (2) reaching back to the dance hall cases of the 1920s,^[27] vicarious liability forms a separate basis for holding defendants responsible for the direct infringement committed by others;^[28] (3) inducement of copyright infringement completes the picture, as recognized by the Supreme Court in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.^[29]

Each of these bases enjoys strong roots, going back over a century. The 2025 treatise revision mentioned above devotes four sections to those three species—every single one of which runs over two dozen pages.^[30] But the division between them has never been hermetic. As the Supreme Court explained in its Betamax ruling, “the lines between direct infringement, contributory infringement and vicarious liability are not clearly drawn.”^[31] Illustrative are such cases as Gershwin, Fonovisa, and Napster, all of which held defendants liable on the basis of vicarious liability as well as contributory infringement. In Aimster as well, in addition to contributory infringement, the separate theory of inducement applied.

Evaluating the Present

Fear and Loathing

Sony Music hired an anti-piracy vendor, which ended up sending Cox Communications (a privately held Internet Service Provider) over 163,000 infringement notices. Extensive testimony illuminated how Cox handled the notices it received—basically, never terminating infringers no matter how many times they infringed. After a 12-day trial, a jury found Cox both vicariously and contributorily liable. Finding Cox’s secondary infringement willful, it awarded $1 billion in statutory damages.^[32] On appeal, the Fourth Circuit affirmed the jury’s finding of contributory liability:

The evidence at trial, viewed in the light most favorable to Sony, showed more than mere failure to prevent infringement. The jury saw evidence that Cox knew of specific instances of repeat copyright infringement occurring on its network, that Cox traced those instances to specific users, and that Cox chose to continue providing monthly internet access to those users despite believing the online infringement would continue because it wanted to avoid losing revenue.^[33]

At the same time, though, the Fourth Circuit reversed the jury’s vicarious liability finding, concluding that Cox did not receive “a direct financial benefit from its subscribers’ infringement of Plaintiffs’ copyrights.”^[34] It is submitted elsewhere that this disposition of vicarious liability was in error and created a circuit conflict.^[35]

Nonetheless, the Supreme Court denied Sony’s petition on vicarious liability, at the same time that it granted Cox’s parallel writ of certiorari on contributory liability.^[36] Ultimately, it unanimously reversed the Fourth Circuit’s vindication of contributory infringement. Without citing Gershwin or any other lower court rulings at all,^[37] the majority endorsed a highly limited framework for contributory liability in copyright law:

The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement. The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.^[38]

It reached that conclusion with the observation that “[t]he Court’s precedents have recognized specific forms of secondary copyright liability that predated the Copyright Act, but the Court is loath to expand such liability beyond those precedents.”^[39]

When we examine the fear that led to that loathing, matters turn curious.

Cox v. Sony repeatedly cited to the Supreme Court’s own copyright opinions, including Betamax and Grokster. But it failed to acknowledge that the latter case held that one “infringes contributorily by intentionally inducing or encouraging direct infringement,” a doctrine that it labeled “well established in the law.”^[40] Even more strikingly, the 2005 Supreme Court opinion reached that conclusion through multiple citations to Gershwin itself! Therefore, without expanding prior Supreme Court precedents at all, Cox could have readily recognized the through-line from Gershwin through 2026, recognizing the vitality of contributory infringement. It is difficult to understand what led to that cavalier rejection of precedent—particularly given that the concurrence called out that error.^[41]

The majority opinion was clear that “knowledge” of the direct infringement is insufficient to render liable a party who is providing material contribution to the direct infringement. But the opinion never clarified the level or specificity of knowledge being discussed. Early on, Justice Thomas stated the unremarkable proposition that liability cannot be based on a generalized knowledge of prospective infringement.^[42] Later, the majority averred that the “Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe,”^[43] citing Betamax for the proposition that there is no liability based on “constructive knowledge of the fact that its customers may use the equipment to make unauthorized copies of copyrighted material.”^[44] The opinion failed to specify what point, beyond mere knowledge, suffices to render a party contributorily liable.^[45]

It is here that the previously mentioned concurrence sheds light. Joined by Justice Jackson, Justice Sotomayor reasoned that civil aiding and abetting should provide a suitable formula for one form of contributory liability in copyright law. In her formulation, this form of contributory liability would incorporate the common law principle that “intent can sometimes be inferred from what the defendant knew when he acted.”^[46] Sufficiently specific knowledge, and therefore inference of intent, “most commonly attaches where the defendant aided a specific instance of unlawful conduct.”^[47]

Plugging a Holey Ruling

On the surface, it seems that Cox v. Sony has reduced the field of secondary liability from three operative theories to two. Whereas plaintiffs previously could pursue independent counts for (1) vicarious liability, (2) inducement, or (3) contributory infringement, this case seemingly combined (2) and (3) under a single rubric. Justice Thomas’s majority opinion styled inducement as the vehicle to prove contributory infringement.

On further investigation, though, three vehicles remain present. Granted, plaintiffs can no longer proceed under Gershwin by simply alleging a material contribution to infringement undertaken with knowledge.^[48] Nonetheless, it remains possible to thread the needle such that not only inducement causes of action remain, but also those for contributory infringement under defined circumstances.

Consider the majority’s language: “The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.”^[49] That phraseology in the disjunctive means that there are two ways that the intent required for contributory infringement can now be shown:

1. “A provider induces infringement if it actively encourages infringement through specific acts.”^[50]
2. “A service is tailored to infringement if it is not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.”^[51]

We will see below how that evidence can unfold.

Predicting the Future

Precedents Revisited

When Gershwin was operative, plaintiffs could prevail by showing the defendant’s material contribution undertaken with knowledge of the infringement. After Cox, those ingredients, standing alone, fail to pass muster. As a result, the analysis set forth in Gershwin and its progeny no longer suffices.

But in no way does it follow that the results of any given case would have turned out differently. Let us start with Gershwin itself. In that case, defendant Columbia Artists Management organized community groups to put on concerts featuring infringing public performances.^[52] It further managed the performers engaged in infringing public performances.^[53] Given the presence of a defendant intimately involved in organizing local associations to provide concerts in which copyrighted works were performed, knowing that neither the associations nor the performing artists would obtain public performance licenses, the plaintiff could have readily demonstrated that the defendant provided a “service tailored to infringement” and/or induced the direct infringement.^[54]

Even if it failed on that basis, Gershwin upheld vicarious liability. Accordingly, the defendant would not have escaped liability, even if the factfinder rejected inducement under the above circumstances.

Parallel considerations mark Fonovisa. In that case, defendant Cherry Auction operated a swap meet where third-party vendors sold unauthorized copies of sound recordings; its “provision of space, utilities, parking, advertising, plumbing, and customers” was “sufficient to show material contribution to the infringing activity.”^[55] It continued to persevere even after the local sheriff’s department raided the swap meet and seized more than 38,000 counterfeit sound recordings.^[56] As the appellate court noted, “it would be difficult for the infringing activity to take place in the massive quantities alleged without the support services provided by the swap meet.”^[57] Under those circumstances, it is not hard to imagine that the plaintiff could have satisfied the later Cox standard that the defendant “intended that the provided service be used for infringement.”^[58]

But even if it failed on that basis, we have the same backup again. Fonovisa also upheld vicarious liability, so that defendant also would have been held culpable regardless of Cox.

When we move next to Napster, the same applies. “Napster executives . . . promoted the website with screen shots listing infringing files,”^[59] Napster “offer[ed] search and directory functions specifically designed to allow users to locate music,”^[60] and its executives’ “admissions suggest[ed] that facilitating the unauthorized exchange of copyrighted music was a central part of Napster, Inc.’s business strategy from the inception.”^[61] All of these particulars count in a Grokster inducement analysis to show that the defendant had the unlawful purpose of promoting infringement.^[62]

Plus, the confluence is also identical to the previous instances—like the defendants in the prior cases, this case also held Napster culpable for vicarious liability. Again, Cox affords no escape.

And let’s not forget Cox itself. The jury found defendant Cox vicariously liable, which the district court accepted. Although the Fourth Circuit reversed that holding, two qualifications must be noted: (a) even though that portion of the appellate ruling was facially questionable, the Supreme Court did not resolve the circuit conflict—meaning that the district court’s perspective may yet prevail; and (b) the panel’s ultimate opinion favored the plaintiff on the alternative basis of contributory infringement. Had the Supreme Court previously made that last basis unavailable under those circumstances, it remains eminently possible that the appellate decision would have reached an appropriately adjusted pro-plaintiff disposition under the vicarious rubric.

Last comes Aimster. Judge Posner issued that ruling before the Supreme Court adopted inducement liability. But, in upholding contributory infringement, his analysis essentially anticipated the later Grokster ruling. In particular, the Seventh Circuit rejected the proposition that “actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer” at the same time that it held that a more demanding standard should be applied to establish that a product or service has commercially significant noninfringing uses.^[63] Had the timing been backward, this case could have simply adopted the term “inducement” and upheld liability on that basis. Now that Cox governs, it is abundantly clear that the Aimster peer-to-peer system would qualify as a service “tailored to infringement.”^[64]

Based on the above, all the defendants in the major cases discussed above would have been ensnared in liability, even in a post-Cox world. When we broaden our perspective to additional cases, similar considerations remain at play.

Intermediaries Providing Space to Infringers

Let us investigate further the paradigm established by Fonovisa, which Napster and Aimster pushed forward. The original case held liable a flea market operator who knew that a particular vendor was selling infringing goods, yet continued to lease space to that infringing vendor. Before Cox, that operator could be contributorily liable simply using a material contribution theory. After Cox, leasing the space to a known infringer (material contribution plus knowledge) may no longer suffice—to be held liable, the operator would have to take some affirmative act to encourage the infringement. Even under that heightened standard, nonetheless, most such cases should survive—as would have Fonovisa itself, as set forth above.

Pure Piracy Websites

Piracy websites supply one clear example of Cox changing labels and language, but leaving liability intact. Piracy website operators do not merely provide a service with noninfringing uses that they know a customer will misuse. Instead, they encourage infringement at least by selecting unauthorized programming and organizing it for viewing. Sometimes, piracy website operators advertise infringing content, give advice on how to conceal infringement, solicit user requests on which infringing works to add to the library, or reassure users that the infringement is actually perfectly legal. Any of these specific affirmative acts can be sufficient to establish inducement, and often tailoring as well.

Consider Fornix Holdings LLC v. Unknown Party.^[65] Plaintiffs produced adult entertainment videos, allowing customers to stream them behind a paywall. Instead of producing their own videos, plaintiffs’ competitors published those videos for free on competing websites.^[66] Applying the old standard, the court held that “the wholesale reproduction and distribution of copyrighted works materially contributes to copyright infringement.”^[67] But the facts do not require a material contribution theory. Assembling a catalog of infringing videos, organizing those videos, and providing them to users for free all constitute specific acts that encourage infringement. And websites that only host pirated works can only be used to infringe. Therefore, both of Cox’s pathways to show intent for contributory liability would be met.

In another case, a website allowed users to buy and sell copyright-protected iTunes files, reassuring users that these activities were legal.^[68] The court found contributory liability both because the service was not capable of substantial noninfringing uses, and because of material contribution to infringement.^[69] Cox does not disturb the first rationale. A website is tailored for infringement if its only use is to make unauthorized transfers of copyrighted works. And notwithstanding that Cox requires inducement rather than material contribution, the result would not change. Assuring users that their infringement is legal constitutes the type of specific affirmative encouragement that Cox describes.

Before Cox, courts expressly held that piracy websites constituted inducement. For example, in Columbia Pictures Indus., Inc. v. Galindo,^[70] operators of an unlicensed streaming platform curated and promoted infringing works, solicited users’ requests for additional downloads, and advised users on how to conceal their locations while viewing the content.^[71] The court found that these actions could give rise to contributory liability under an inducement theory.^[72] In short, Cox cannot save piracy websites from liability. Indeed, a court applying Cox has already reached that result, finding sufficient encouragement where a defendant offered, promoted, and attempted to conceal unauthorized access to copyrighted streams.^[73]

Social Media that Welcome Infringement

Similar considerations apply to social media websites that welcome copyright infringement. Contributory liability for social media websites with substantial lawful uses now requires inducement, meaning some specific act that encourages the infringement. This new requirement of identifying acts that encouraged infringement may seem like a big change in the law. But, in practice, successful contributory liability cases before Cox often involved specific acts of encouragement that would qualify even after Cox.

For example, Greer v. Moon involved the “Kiwi Farms” social media platform.^[74] Kiwi Farms’ users posted copies and unauthorized recordings of the plaintiff’s book and music, as part of a bullying campaign. After receiving takedown notices, the website operator did not merely ignore the takedown notices. Instead, he mockingly published the notices on the website. The Tenth Circuit concluded that the operator materially contributed to the infringement by encouraging the users’ infringement.^[75] Ridiculing the copyright owner’s takedown notices encouraged infringement by signaling to the community that the infringing activity was welcome. Although the ruling used the language of “material contribution,” the operator would have been liable under the new standard for inducement.

Inducement under Cox may also exist if a social media platform sells a feature that renders infringement easier. For example, in Concord Music Grp., Inc. v. X Corp., music publishers alleged that X enforced its copyright policies less stringently against individuals willing to pay for the platform’s “verified” service.^[76] The court found that allowing users to effectively purchase the ability to infringe with fewer consequences materially contributed to infringement by promoting the infringement.^[77] As in Greer, the court found that a social media platform “materially contributed” to infringement through specific acts that promoted infringement. These rulings, rooted in inducement, should remain good law after Cox.

Marketplaces that Promote Infringing Sellers

A final example comes in marketplaces promoting copyright infringement. Successful contributory infringement cases of the past against online shopping platforms often involved those platforms promoting infringing vendors. Cox should not negate liability in these cases, either.

For example, when the online marketplace Alibaba was accused of contributory infringement, the complaint did not rest on merely allowing infringement to continue after receiving takedown requests.^[78] Plaintiffs alleged that Alibaba promoted a third-party seller’s infringement by granting the seller “Gold Supplier” and “Verified Supplier” status on the platform, selling keywords associated with the infringed property, and promoting the infringing products to customers in emails.^[79]

Similar conduct was alleged in Kelly Toys Holdings, LLC v. 19885566 Store.^[80] The shopping platforms’ conduct extended far past providing a service to a known infringer. Verification badges conferred credibility on infringers, and selling keywords associated with infringement encouraged the sale of infringing products on the platform. Including infringing products in promotional emails can qualify as evidence of express promotion, marketing, and intent to promote infringement that was absent in Cox. Although Cox may shield platforms that treat infringers like normal customers, it presumably will not shield platforms that promote them.

Advertising and Beyond

At least one post-Cox court has already confirmed that inducement is not limited to the contexts discussed in Cox. In Nazemian v. NVIDIA Corp., the court explained that when Cox described advertising and promotion as acts that encourage infringement, it was merely providing examples.^[81] Affirmative acts such as directions, authorizations, and purported licenses can encourage infringement just as clearly as the acts that Cox found lacking.

If advertising an infringing use to strangers is inducement, directing a specific person to commit a specific infringing act is even more clearly inducement. Courts recognized this logic before Cox. For example, in New Tradition Media, LLC v. Rittersbacher Sunset, LLC, a property owner asked its real estate firm to upload unlicensed copyrighted materials to a data room that potential buyers could access.^[82] When the real estate firm complied, the property owner was liable for inducing infringement.^[83] Similar cases involved directing advertisers to publicly display and distribute unauthorized photographs,^[84] instructing employees to broadcast unauthorized programming,^[85] and encouraging employees to engage in infringing conduct.^[86] Although the resulting opinions typically invoked material contribution,^[87] these cases all involved specific acts that encourage infringement. Future cases with similar facts may use different language, but liability may remain.

Contributory infringement can also arise when a party lacks authorization to license a creator’s work, but does so anyway. Licensing signals to the licensee that specified uses are permitted, thereby inviting the licensee to unknowingly infringe. For example, in Lane Coder Photography, LLC v. Hearst Corp., a licensor distributed a photo to Yahoo pursuant to a content-license agreement between the licensor and Yahoo, but the licensor did not have authorization from the photographer.^[88] The court considered this circumstance to be sufficient material assistance under the old standard, allowing the contributory infringement claim to proceed.^[89] Cox should not change the result. Distributing a copyrighted work under a license agreement is a specific act that encourages infringement by conveying to the licensee that they may infringe.

Personalized Services

Now, let us focus on the precise circumstances of the defendant that the Supreme Court addressed. Cox was a communications infrastructure provided to consumers on a comprehensive, standardized, and automated basis—similar to utilities or subscription services on the internet, such as streaming services, cloud storage, and resale platform accounts. The Court exonerated the standardized services at issue. It remains to be determined what the legal consequence would be when defendants provide personalized, individual services to a direct infringer—especially when they provide those personalized, individual services with awareness of the direct infringement and their own role in the direct infringement.

When those personalized circumstances are present, they would appear to qualify as “tailored to” the direct infringement being supported.^[90] This interpretation is to be favored in that it meaningfully addresses the concurrence’s concern that aiding and abetting fact patterns should not escape liability. Moreover, this interpretation of tailored to infringement preserves a large body of contributory liability case law in the lower courts that establish contributory liability when one party engages in specific, individualized activities that assist another specific individual’s direct infringement. The requisite participation in and furtherance of the direct infringement^[91] may count as providing a service tailored to infringement in a wide set of circumstances, including:

• advertising an infringing product or activity;^[92]
• arranging the advertising for the infringing product or activity;^[93]
• providing accounting and administrative support to the infringing activities;^[94]
• providing financing to the infringing activities;^[95]
• helping a direct infringer find supplies needed for the infringement;^[96]
• taking orders, packaging, and shipping an infringing product;^[97] and
• arranging for an entertainer to attend a public event wearing an infringing cartoon character costume.^[98]

Defendants in these cases often engage in participatory acts closely tied to the direct infringement. A & M Records, Inc. v. Abdallah^[99] provides an example of this kind of combination of participatory acts and providing equipment and materials needed for the direct infringement:

[T]he evidence in this case indicated that Mr. Abdallah’s actions went far beyond merely selling blank, time-loaded tapes. He acted as a contact between his customers and suppliers of other material necessary for counterfeiting, such as counterfeit insert cards; he sold duplicating machines to help his customers start up a counterfeiting operation or expand an existing one; he timed legitimate cassettes for his customers to assist them in ordering time-loaded cassettes; and he helped to finance some of his customers when they were starting out or needed assistance after a police raid.^[100]

Another example of a service tailored to infringement may arise when one party contracts for an activity to be performed, knowing that that activity is likely to entail copyright infringement.^[101] Because the contributory infringer will commonly provide the direct infringer with some preexisting works that are subsequently infringed as part of an ongoing business relationship, these fact patterns may also support contributory infringement by “inducement.”^[102]

Individualized, personal services may also qualify when an employee carries out activities for a corporation that is the direct infringer. Microsoft Corp. v. EEE Bus. Inc. provides an example:

Wang does not contest that she was instrumental in the procurement of leasing space of the company, renting a private mail box, opening a PayPal account in her name which was used to receive payment for the sale of infringing Microsoft products, opening Bank of America accounts for the company, applying for a credit card merchant account, registering EEE Business as a reseller for a business partner, purchasing telephone equipment for the business and hiring a CPA to prepare tax returns for the company.^[103]

Given defendant’s awareness of what the company was doing, the bundle of professional services can be seen as tailored to the employer’s direct infringement.

These past cases properly understand the Grokster inducement theory as an analytic framework for imputing unlawful intent to defendant. Pre-Cox cases recognized that the knowledge requirement of contributory infringement itself served as the basis to infer unlawful intent.^[104] Since Cox, more is required than mere knowledge—but styling defendant’s mental state as intent may fill the gap in order to hold defendants liable.

Keeping Secondary Liability Almost Wholly Intact

Undoubtedly, cases will unfold in which the new standard announced in Cox will torpedo lawsuits that, under former law, could have been effective. Defendant Cox itself appears to have dodged the bullet, and the Supreme Court’s vacatur of a parallel Fifth Circuit ruling may portend the escape of that defendant as well.^[105]

Nevertheless, this status will apply only when each one of the following circumstances is present:

• The target defendant materially contributed to the infringement with knowledge that it was taking place (the baseline under former law);
• Yet it did not cater to individualized customers;
• Nor did it induce copyright infringement, which may be broadly defined to include making arrangements, advertising, providing accounting and administrative support, providing financing, taking orders, or a variety of other factors under relevant circumstances;
• Its product or service was not “tailored to infringement”;
• By the same token, its product or service was capable of proportionally significant noninfringing uses; and
• Finally, it did not satisfy the elements of vicarious liability.

Although it is impossible to predict exactly how many cases will arise in that posture, the considerations above indicate that they may be few. In that sense, the aftershocks from Cox v. Sony may prove, against preliminary predictions, not to meaningfully topple existing legal structures.

Published with permission of David Nimmer. This position paper relies on large portions of the 2025 and 2026 revisions to Nimmer on Copyright undertaken jointly with Prof. Justin Hughes. Thanks to Eli Levinson and Heather Krassy for excellent research assistance.

Endnotes

1. Aaron Moss, “Supreme Court Draws a Hard Line on Contributory Infringement in Cox v. Sony Music,” Copyright Lately (March 25, 2026), https://copyrightlately.com/supreme-court-contributory-infringement-cox…. ↑
2. 146 S. Ct. 959 (2026). ↑
3. Moss, supra note 1. ↑
4. See Jonathan L.A. Phillips, “The Supreme Court Just Made It a Lot Harder to Sue the Internet for Copyright Infringement” (Mar. 30, 2026), https://www.jlaplaw.com/blog/2026/3/28/the-supreme-court-just-made-it-a…. ↑
5. Christopher A. Cotropia & James Gibson, “Two Cheers for Cox v. Sony,” 24 Northwestern Journal of Technology & Intellectual Property (forthcoming 2026). ↑
6. Id. (“mischaracterizes, oversimplifies, and ignores precedent” and “mangles the meaning of ‘intent’”). ↑
7. Prior to the Supreme Court’s decision in Cox, it was unclear whether induced infringement was a species of contributory infringement or its own unique doctrine. See Nimmer on Copyright § 13E.05. After Cox, it is clearly a species of contributory infringement. ↑
8. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). ↑
9. See Nimmer on Copyright § 13E.03 (2025), revised as § 13E.14 (2026). ↑
10. Rohauer v. Killiam Shows, Inc., 551 F.2d 484, 486 (2d Cir. 1977). ↑
11. Id. at 494. ↑
12. Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir. 1988). Another difference was the identity of counsel who signed the complaint presenting Sheldon Abend’s infringement case: Melville B. Nimmer. ↑
13. Stewart v. Abend, 495 U.S. 207, 227 (1990). ↑
14. The Supreme Court rejected its fallback defense of fair use. Id. at 236–38. ↑
15. Gershwin Publ. Corp. v. Columbia Artists Mgmt., 443 F.2d 1159, 1160 (2d Cir. 1971). ↑
16. Id. at 1162 ns. 6 & 7, 1163 (also citing Nimmer on Copyright on indirect liability). ↑
17. “[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Id. at 1162. ↑
18. 76 F.3d 259 (9th Cir. 1996) (also citing Nimmer on Copyright on indirect liability). ↑
19. 239 F.3d 1004 (9th Cir. 2001) (also citing Nimmer on Copyright on indirect liability). ↑
20. 334 F.3d 643 (7th Cir. 2003). ↑
21. See Lucky Break Wishbone Corp. v. Sears, Roebuck & Co., 528 F. Supp. 2d 1106 (W.D. Wash. 2007). Plaintiff “impliedly conced[ed] that the negotiations between [the advertising agency] and Lucky Break cannot form the basis for contributory infringement,” id. at 1125, and when the advertising agency provided copies of plaintiff Lucky Break’s copyrighted wishbones to Sears, it did so with plaintiff’s implicit authorization, id. at 1126. The court found that the advertising agency’s subsequent involvement in Sears’ promotional program was based on the belief that Sears was working with Lucky Break. Id. at 1126–27. ↑
22. See Lifetime Homes, Inc. v. Residential Dev. Corp., 510 F. Supp. 2d 794, 810 (M.D. Fla. 2007). Plaintiff tried to draw an analogy to Fonovisa, by arguing that “defendants’ act of buying and selling the land on which RDC constructs homes provides a forum in which RDC engages in infringing construction,” 510 F. Supp. 2d at 808. But the court concluded that no authority supported “[p]laintiff’s proposition that the act of buying and selling land to one who infringes another’s copyright by constructing homes on the land is sufficient, without more, to hold the seller of the land accountable for the infringement.” Id. at 808–09. Another case found the real estate agent’s making phone calls to inquire on progress of a construction project involving infringing architectural plans not to provide “any direct assistance in expediting the copying process.” Demetriades v. Kaufmann, 690 F. Supp. 289, 293 (S.D.N.Y. 1988). ↑
23. Those facts were insufficient to demonstrate that defendant acted “in concert” with any direct infringement. State Street Global Advisors Trust Co. v. Visbal, 431 F. Supp. 3d 322, 359 (S.D.N.Y. 2020) ↑
24. The chain reaches all the way back to Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911). See Nimmer on Copyright § 13E.14[A][1]. ↑
25. See Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984). This case recognized an exception to contributory infringement when the defendant sold a product that was capable of substantial noninfringing use, even though it also might have been used for copyright infringement. ↑
26. Past literature typically referred to that ruling as Sony. With the advent of Cox v. Sony, it seems better to label that earlier ruling as Betamax. See Nimmer on Copyright § 13E.03[B][1]. ↑
27. See Nimmer on Copyright § 13E.02. ↑
28. See Shapiro Bernstein and Co. v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963). ↑
29. 545 U.S. 913 (2005). ↑
30. The rundown is 30 pages for vicarious liability, 4 Nimmer on Copyright § 13E.02 (2025), 28 pages for inducement, id. § 13E.05, 38 pages for contributory infringement, id. at § 13E.03, and finally 25 pages explaining how staple items of commerce avoid inculpation for contribution, id. at § 13E.04. ↑
31. Sony, 464 U.S. at 435 n.17 (quoting district court below). ↑
32. Sony Music Entertainment v. Cox Communications, Inc., 464 F. Supp. 3d 795 (E.D. Va. 2020). ↑
33. 93 F.4th 222, 236 (4th Cir. 2024). ↑
34. Id. at 233. ↑
35. See Nimmer on Copyright § 13E.02[C][2]. ↑
36. 606 U.S. 931 (2025). ↑
37. As noted above, hundreds of district and circuit court copyright cases followed Gershwin. ↑
38. Cox, supra note 2, at 967. ↑
39. Id. at 962. ↑

40. The full paragraph reads:

    One infringes contributorily by intentionally inducing or encouraging direct infringement, see Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (CA2 1971), and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it, Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (CA2 1963). Although “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” Sony Corp. v. Universal City Studios, 464 U.S., at 434, 78 L. Ed. 2d 574, 104 S. Ct. 774 these doctrines of secondary liability emerged from common law principles and are well established in the law, id., at 486, 78 L. Ed. 2d 574, 104 S. Ct. 774 (Blackmun, J., dissenting); Kalem Co. v. Harper Brothers, 222 U.S. 55, 62-63, 56 L. Ed. 92, 32 S. Ct. 20 (1911); Gershwin Pub. Corp. v. Columbia Artists Management, supra, at 1162; 3 M. Nimmer & D. Nimmer, Copyright § 12.04[A] (2005).

    MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930–31 (2005) (footnote omitted). ↑

41. Cox, supra note 2, at 969 (Sotomayor, J., concurring in the judgment) (“the majority . . . unnecessarily limits secondary liability even though this Court’s precedents have left open the possibility that other common-law theories of such liability”). ↑
42. Id. at 964 (“a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights”). ↑
43. Id. at 968 (emphasis added). ↑
44. Id. (emphasis added) (quoting Sony, 464 U.S. at 439). At the same time, it cited Grokster on a side issue. Id. (quoting 545 U.S. at 939, n.12) (“And, in Grokster, the Court confirmed that ‘a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement.’”). ↑
45. A case later in the Supreme Court term raises more questions. Deciding a patent law contributory liability case with repeated references to the copyright cases of Grokster and Cox v. Sony, the Court went so far as to refer to Grokster as one of “our patent cases” and the “most important one” at that! See Hikma Pharmaceuticals USA v. Amarin Pharma, 146 S. Ct. 1391, 1398 (2026). ↑
46. Cox, supra note 2, at 973. ↑
47. Id. at 975. ↑
48. See Gershwin, supra note 16. ↑
49. Cox, supra note 2, at 967. ↑
50. Id. ↑
51. Id. How “substantial” must it be? In Grokster, Justice Breyer’s concurrence evaluated the matter absolutely—so that a massive service may be 90% infringing, but the residual instances might still number in the thousands, thus qualifying as “substantial.” By contrast, Justice Ginsburg’s concurrence adopted a proportional measure. In Cox, the Supreme Court adopted the latter approach—meaning that thousands of instances of noninfringement now may not serve to protect a party whose product is involved in millions of instances of copyright infringement. See Nimmer on Copyright §§ 13E.03[D][3], 13E.04[D][3]. ↑
52. See Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 312 F. Supp. 581, 582–83 (S.D.N.Y. 1970), aff’d, 443 F.2d 1159 (2d Cir. 1971). ↑
53. Both levels of courts so ruled. At trial, see 312 F. Supp. at 582–83. The appellate court agreed. 443 F.2d at 1163 (defendant’s “pervasive participation in the formation and direction of this association and its programming of compositions presented amply support the district court’s finding that it ‘caused this copyright infringement’”). ↑
54. Cox, supra note 2, at 968. ↑
55. Fonovisa, 76 F.3d at 264. ↑
56. Id. at 261. ↑
57. Id. at 264. ↑
58. Cox, supra note 2, at 967. ↑
59. A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 919 (N.D. Cal. 2000). ↑
60. Id. at 919. ↑
61. Id. at 918. ↑
62. See Nimmer on Copyright § 13E.05[C][5]. ↑
63. Aimster, 334 F.3d at 649. ↑
64. Cox, supra note 2, at 967. ↑
65. No. CV-23-01200-PHX-MTL, 2025 WL 1235573 (D. Ariz. Apr. 29, 2025). ↑
66. Id. at *1, *5. ↑
67. Id. at *6. ↑
68. Capitol Recs., LLC v. ReDigi Inc., 934 F. Supp. 2d 640, 645, 658 (S.D.N.Y. 2013), aff’d, 910 F.3d 649 (2d Cir. 2018). ↑
69. See id. at 658–60 & n.9. After deciding contributory infringement on these grounds, the court declined to reach the question of inducement. ↑
70. No. 2:20-CV-03129-MEMF-GJS, 2022 WL 17094713 (C.D. Cal. Nov. 18, 2022). ↑
71. Id. at *8–11. ↑
72. Id. at *10. ↑
73. Amazon Content Servs. LLC v. Weibley, No. 1:25-CV-00388, 2026 WL 1683119, at *8 (M.D. Pa. June 10, 2026). ↑
74. 83 F.4th 1283 (10th Cir. 2023). ↑
75. Id. at 1295. ↑
76. No. 3:23-CV-00606, 2024 WL 945325, at *8 (M.D. Tenn. Mar. 5, 2024). ↑
77. Id. ↑
78. Pinkfong Co., Inc. v. Alibaba.com Singapore E-Com. Pte. Ltd., No. 23 CIV. 10967 (DEH), 2025 WL 934905 (S.D.N.Y. Mar. 27, 2025). ↑
79. Id. at *3–4. ↑
80. No. 22-CV-9384 (JMF), 2023 WL 8936307, at *1 (S.D.N.Y. Dec. 27, 2023) (finding contributory infringement sufficiently alleged where defendants “affirmatively promoted or assisted in promoting” infringing store listings by granting direct infringer merchants “Gold Supplier” and “Verified” status, purchasing and selling keywords of the infringed product’s trademarks, and promoting the infringing products in promotional emails). ↑
81. No. 24-CV-01454-JST, 2026 WL 1229583, at *6 (N.D. Cal. May 5, 2026) ↑
82. 2023 WL 8351523, at *1–2 (C.D. Cal. Oct. 13, 2023). ↑
83. Id. at *5. ↑
84. Evox Prods., LLC v. Cargurus, Inc., No. 25-CV-00856-SSS-DTBX, 2025 WL 3691447, at *5 (C.D. Cal. Nov. 17, 2025). ↑
85. J & J Sports Prods., Inc. v. Enriquez, No. 1:19-CV-2384 (ERK), 2019 WL 4963108, at *2–3 (E.D.N.Y. Oct. 7, 2019). ↑
86. EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 100 (2d Cir. 2016). ↑
87. See, e.g., id. ↑
88. No. 22-CV-5071-LTS, 2023 WL 5836216, at *4 (S.D.N.Y. Sept. 8, 2023). ↑
89. Id. ↑
90. Cox, supra note 2, at 967. ↑
91. See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399, 403–05 (S.D.N.Y. 1966). ↑
92. See id. at 405. ↑
93. See id. at 404 (agency that “placed the radio advertising for the promotion and sale of the [infringing] records” potentially liable for having “knowingly participated in or furthered the tortious conduct.”); Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 161 (3d Cir. 1984) (contributory liability for related company that “conducted all of the advertising and promotional work for” direct infringer); Faulkner v. Natl. Geographic Soc’y., 211 F. Supp. 2d 450, 473–74 (S.D.N.Y. 2002), modified, 220 F. Supp. 2d 237 (S.D.N.Y. 2002), aff’d, 409 F.3d 26 (2d Cir. 2005). ↑
94. See Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 161 (3d Cir. 1984). ↑
95. See A & M Records, Inc. v. Abdallah, 948 F. Supp. 1449, 1457 (C.D. Cal. 1996). ↑
96. See id. ↑
97. See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399, 405 (S.D.N.Y. 1966) (summary judgment denied to defendant who “packaged and mailed the [infringing] records”); Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 327 F. Supp. 788, 791 (1971) (contributory liability for defendant who “arranged for a mailing company to fill” orders for infringing records as well as “furnished the labels for the records and ordered the corrugated boxes in which they were mailed”). ↑
98. See Brown v. It’s Entertainment, Inc., 34 F. Supp. 2d 854, 858 (E.D.N.Y. 1999). ↑
99. 948 F. Supp. 1449 (C.D. Cal. 1996). ↑
100. Id. at 1457. ↑
101. See Ranieri v. Adirondack Dev. Grp., LLC, 164 F. Supp. 3d 305, 347 (N.D.N.Y. 2016) (defendants contributorily liable who retained competing architectural firm to make modifications on another architectural firm’s drawings without permission from that firm); Celestial Arts, Inc. v. Neyler Color-Lith Co., 339 F. Supp. 1018 (E.D. Wisc. 1971) (party contracted with another party to reproduce copyrighted works). ↑
102. In Ranieri, for example, although the contributing party provided copies of the material to be directly infringed, the infringement would not have occurred if the direct infringer had only been provided with the copies: the direct infringer needed the further incentive of the contributor’s ongoing business relationship. ↑
103. 555 F. Supp. 2d 1051, 1059 (N.D. Cal. 2008). ↑
104. See BMG Rights Mgt. (US) LLC v. Cox Commun., Inc., 881 F.3d 293, 307 (4th Cir. 2018); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1171–1172 (9th Cir. 2007) (knowledge of infringement used as basis to impute intent); Millennium Funding, Inc. v. 1701 Mgt. LLC, 576 F. Supp. 3d 1192, 1210 (S.D. Fla. 2021). ↑
105. At the same time that Cox was held liable, similar circumstances unfolded in another case. The trial court found that “continuing to sell internet services and continuing to provide internet access to infringing customers” was not merely a refusal to act, but was a specific act that encouraged infringement. UMG Recordings, Inc. v. Grande Communications Networks, 384 F. Supp. 3d 743, 767 (W.D. Tex. 2019). It would seem that providing a service that is not tailored to infringement can no longer be the “specific act” that encourages infringement. The Supreme Court vacated the appellate affirmance, 118 F.4th 697 (5th Cir. 2024), for reconsideration in light of its Cox ruling, see 146 S. Ct. 2152 (2026). ↑