Contributory copyright liability for e-commerce platforms is in flux after the Supreme Court's recent ruling in Cox Communications, Inc. v. Sony Music Ent, 146 S. Ct. 959 (2026).
The decision narrows years of precedent by holding that an internet service provider ("ISP") cannot be held contributorily liable for its subscribers' copyright infringement absent proof that the ISP intended infringement.
Yet Cox does not mean internet platforms are immune to liability. Cox raises the bar to show infringement, but creative plaintiffs may be able to advance claims by asking courts to infer infringing intent based on a platform's provision of routine services. E-commerce platforms should thus continue to retain robust Digital Millennium Copyright Act (DMCA) takedown regimes in order to avoid any inference that they are intentionally inducing infringement.
The Cox decision
Sony Music alleged ISP Cox Communications failed to remove users who unlawfully downloaded music. The Fourth Circuit affirmed liability for contributory copyright infringement, ruling that "supplying a product with knowledge that the recipient will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for contributory infringement." Sony Music Entm't v. Cox Communs., Inc., 93 F.4th 222, 235 (4th Cir. 2024).
The Supreme Court disagreed. Justice Thomas, writing for the majority, ruled that a defendant can only be liable for contributory infringement if they "intended that the provided service be used for infringement." He further ruled that intent can be shown only through evidence of 1) inducement, or 2) that the provided service is tailored to that infringement.
The Court explained that inducement occurs where a provider "actively encourages infringement through specific acts." The Court pointed to MGM Studios Inc. v. Grokster, Ltd., as providing examples of "specific acts," namely where the defendant "promoted and marketed their software as a tool to infringe copyrights." As to whether a service is tailored to infringement, the Court quoted Sony Corp. of Am. v. Universal City Studios, Inc. for the proposition that such tailoring exists only where a service is not "capable of substantial noninfringing uses."
Justice Sotomayor, joined by Justice Jackson, concurred that contributory copyright liability could attach only where a defendant intended to infringe. But she argued the Court should continue to allow liability under the common law doctrine of aiding-and-abetting. Under this doctrine, intent to aid-and-abet may be inferred if a defendant has sufficient knowledge of the consequences of their actions.
Before Cox, courts generally—not just the Fourth Circuit—had allowed liability where a service provider had specific knowledge of infringement (i.e., through receiving takedown notices) but failed to take reasonable steps to remove it. Both the majority and concurrence thus substantially narrowed the grounds for finding contributory infringement.
Application to e-commerce sites
Justice Sotomayor warned that the majority's decision would extinguish "any realistic probability of secondary liability for copyright infringement" from ISPs. Cox, 146 S. Ct. at 23. This take also represents how the decision has been interpreted by many commentators. But while the holding is generally viewed as friendly to internet platforms, differences may exist on how the holding applies to distinct platform types, including e-commerce platforms.
For example, Justice Thomas's majority opinion noted no evidence that the ISP in Cox engaged in "express promotion, marketing, and intent to promote infringement." But some e-commerce sites offer promotion and marketing as part of their general services, including through algorithms that populate advertisements for specific listings. Even under Cox, this may be enough to infer intent, at least at the pleading stage.
For example, in Pinkfong Co., Inc. v. Alibaba.com Singapore E-Commerce PTE. Ltd., 23-cv-10967, 2025 U.S. Dist. LEXIS 57189 (S.D.N.Y. Mar. 27, 2025)—a pre-Cox case—Pinkfong, creator of the "Baby Shark" brand, sued Alibaba based on postings by third-party merchants. The district court ruled Pinkfong adequately alleged Alibaba promoted the alleged infringement by "granting Merchant Defendants 'Gold Supplier' and 'Verified Supplier' status; purchasing keywords comprised of Baby Shark trademarks to promote counterfeit products; selling keywords comprised of Baby Shark trademarks to sellers of counterfeit products, including Merchant Defendants; and promoting counterfeit products in promotional emails." Id. at *10.
Under Cox, Pinkfong would now need to show that Alibaba actually intended to facilitate infringement—rather than merely carrying out the normal services it provides to third-party merchants. But at the pleading stage, it remains an open question whether these allegations may suffice to show "active steps . . . to encourage direct infringement" under the inducement prong to, at least to push the case into discovery.
Nor should platforms assume Cox is the final word. Rightsholders can still bring revised contributory infringement suits to fit the Supreme Court's narrower criteria, shift focus to vicarious liability, or pressure platforms through reputational and commercial channels.
With so much uncertainty, the following practices remain prudent:
Continue promptly responding to DMCA notices: e-commerce sites should not deprecate their DMCA takedown functions. Allegations that an e-commerce site previously had a robust response protocol for takedown notices, but recently stopped, may make a court more willing to infer intent to infringe.
It may be less challenging to infer intent for certain platforms, and a reasonable repeat infringer policy is thus still the way to go: Both Justice Thomas and Justice Sotomayor observed that Cox did not have actual knowledge of the activities of individual users on a particular IP address. But some platform users, especially in the e-commerce space, typically register with individual accounts. When an e-commerce platform is notified of infringement, it is therefore often far easier to identify the specific user who engaged in the infringement. A court may find these facts relevant and distinct from Cox when analyzing intent.
Keep routine platform service including marketing and advertising content-neutral and as automated as possible: Where a platform's algorithm picks up an allegedly-infringing listing for sponsored placement, a plaintiff could argue this constitutes active steps to induce infringement. To the extent, the process is routine, automated, and free from actual human knowledge and involvement, Cox may still act as a shield. But the moment a human cherry-picks infringing listings for platform-backed advertising, sponsored SEO boost, and the like, the ISP-positive outcome in Cox may no longer apply.
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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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