Internet Service Providers Have Been Playing Copyright Cops Without Actually Being Responsible for the Crime
The Cox Communications versus Sony Music Entertainment case currently being heard by the Supreme Court represents a fundamental misalignment in how we approach digital copyright enforcement. Here’s the uncomfortable truth that neither side is adequately addressing: Internet service providers have been profiting from facilitating copyright infringement for years while simultaneously avoiding meaningful responsibility for it. When a Cox customer gets caught pirating music, both Cox and that customer share accountability for the violation, yet only the customer faces consequences. This imbalance has created a system where ISPs have all the incentive to look the other way and no financial pressure to crack down on infringers.
Let’s establish what actually happened in this case. In 2018, Sony Music Entertainment and other record labels sued Cox Communications for contributory copyright infringement. From 2013 to 2014, Cox received over 163,000 infringement notices from an anti-piracy company called MarkMonitor, alerting the company to specific users downloading pirated music. Despite this knowledge, Cox terminated only about 32 customers for copyright violations — while terminating more than 600,000 customers for nonpayment in the same period. A jury ultimately found Cox willfully liable and awarded Sony a billion dollars in damages. That verdict has been upheld and revised through the appeals process, and now the Supreme Court is examining whether ISPs can be held liable for their customers’ copyright infringement.
Cox’s legal argument is clever but self-serving. The company contends that an Internet service provider merely providing basic communications infrastructure shouldn’t be held responsible for what customers do on their accounts, particularly when they’ve received thousands of vague IP-address notices that might not accurately identify individual infringers. According to Cox, the company claims it shouldn’t have to terminate users based on accusations that could be unreliable or could affect innocent household members. Cox also argues that forcing terminations of accounts connected to universities or hospitals would cut off internet access to thousands of non-infringing users, creating an unreasonable burden.
The music industry’s position is equally straightforward. If Cox knew that specific subscribers were repeatedly infringing copyrights and continued providing them with internet service anyway, the company shares responsibility for enabling that infringement. Sony’s attorneys point out that Cox’s own acceptable use policy explicitly prohibited copyright infringement, yet the company failed to enforce it consistently. The fact that Cox could easily terminate accounts for nonpayment but rarely did so for repeated copyright violations suggests a financial priority rather than an enforcement challenge.
What’s being largely ignored in this legal battle is that ISPs occupy a uniquely privileged position in the copyright enforcement ecosystem. They control the pipes. They have direct access to customer account information. They collect payment from users month after month. Yet when those same users engage in copyright infringement, ISPs claim they’re merely neutral conduits with no responsibility to police their networks. This position is intellectually dishonest and economically motivated.
Consider the incentive structure. An ISP like Cox has zero financial consequence for continuing to serve an infringing customer. In fact, they have every incentive to keep that customer connected and paying bills. The copyright holder bears all the costs of detection and litigation. Infringing user occasionally get caught and served lawsuits but likely continues their illegal behavior. The ISP watches all this unfold with complete indemnity. This is a system that was designed to fail from day one, and it’s no surprise that piracy persists at massive scale.
The Supreme Court’s justices seemed genuinely troubled by this dynamic during oral arguments. Justice Sotomayor repeatedly pressed Cox’s attorney about whether the company had any obligation to even try communicating with universities or multi-family dwellings about the infringement happening on their networks. Justice Barrett questioned what incentive Cox would have to continue sending notices if the company won the case and faced no liability. The justices recognized that Cox’s position creates a world where ISPs have absolutely no reason to cooperate with copyright enforcement beyond voluntary corporate goodwill.
The real solution to this problem requires fundamentally restructuring how ISPs approach copyright infringement. Rather than debating whether ISPs should bear liability for their customers’ actions, we should establish a tiered responsibility system that actually incentivizes compliance.
Such a system would require ISPs to implement verified notice-and-response systems that go beyond simply forwarding emails. Instead of vague IP-address notices, ISPs should deploy authentication protocols to confirm that the alleged infringer is actually a current subscriber associated with that account. This shifts the burden of accuracy from copyright holders to ISPs, which is where it belongs because ISPs have the information and the ability to verify it.
The system should also mandate that ISPs to take graduated action in response to verified infringement reports. For first-time offenders, that means clear warnings to the account holder. For repeat offenders who continue after warnings, ISPs should be required to implement throttling of specific services — slowing connection speeds for peer-to-peer downloads while maintaining full service for legitimate uses. Only after documented repeated violations and a clear escalation process should account suspension be considered.
Most importantly, ISPs should be held jointly liable alongside their infringing customers for verified copyright violations. This means copyright holders could pursue ISPs for damages when the ISP knew of the infringement and failed to take progressive action to stop it. This changes the incentive structure overnight. ISPs would suddenly have enormous financial motivation to implement robust enforcement systems, not because they’re being forced to, but because their own liability depends on it.
Such a system could work. Consider that most ISPs already have the infrastructure to throttle specific users and connection types. They already have account verification systems. They already maintain customer service departments that could handle escalated copyright notices. What’s missing isn’t capability — it’s responsibility. By tying ISP liability directly to the verification of infringement and the failure to take reasonable graduated steps to stop it, we create mutual accountability.
Cox claims that such liability would be cataclysmic for the internet, but the company’s own history contradicts that narrative. Cox suspended service for 67,000 subscribers for various violations during the period in question. The company clearly has the ability to terminate accounts when motivated to do so. The difference is that Cox was motivated by nonpayment, not copyright infringement.
Here’s the thing, folks: The bigger picture here is that copyright holders have been asking ISPs to do enforcement work for free while accepting all the legal and operational risk. ISPs have been happy to provide the infrastructure that makes infringement easy while claiming complete neutrality. Customers have been able to infringe with minimal consequences, knowing that ISPs won’t enforce the rules. Nobody in this system is behaving responsibly because nobody faces proportional consequences for their failures.
With that… Whether the Supreme Court holds Cox liable or not, Congress should seriously consider statutory reform that creates true accountability across all three parties. The current framework is broken because it depends on voluntary cooperation from ISPs that have no financial incentive to comply. A system where ISPs share liability for verified copyright violations they fail to address would finally align everyone’s interests with actually reducing piracy rather than simply profiting from its existence.
If you cannot work for them, sometimes it is hard to pick who you are rooting for.