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The Supreme Court Fight That Could Decide Who Gets to Stay Online
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A lineup of civil liberties organizations, technology companies, and internet freedom advocates has filed briefs supporting Cox Communications in a closely watched Supreme Court case that could dramatically alter how internet service providers respond to copyright complaints.
The case, Cox Communications v. Sony Music Entertainment, asks whether ISPs must terminate internet service to users accused, but not convicted, of piracy.
The Supreme Court’s upcoming decision is one of the most consequential internet-related cases in years, not just for copyright law, but for the future of how people access the internet in the United States.
At stake is a fundamental question: can internet service providers be held liable and forced to cut off internet access to users simply because they’ve been accused of copyright infringement, without any judicial process or proof?
Those standing with Cox include the Electronic Frontier Foundation (EFF), American Civil Liberties Union (ACLU), Google, Amazon, Microsoft, Mozilla, Pinterest, and X.
Kiwi Farms founder and president of the U.S. Internet Preservation Society (USIPS), Joshua Moon, also filed a brief “in support of neither party,” but opposing internet cutoffs and arguing that contributory copyright infringement is a judge-made doctrine without a statutory basis, and it has become unworkable and unfair because courts have never clearly defined its “knowledge” standard.
This vagueness, combined with the rise of the DMCA’s notice-and-takedown regime, has chilled free speech and fair use, expanded copyright monopolies, and produced abusive practices.
Cox argues that the Fourth Circuit’s ruling, which held it liable for contributory infringement and ordered a new damages trial, created an untenable standard that would force ISPs to police user activity under threat of billion-dollar judgments.
In a joint brief, the Electronic Frontier Foundation, American Library Association, and others sharply criticized the Fourth Circuit’s interpretation.
The Electronic Frontier Foundation, American Library Association, and other groups filed a joint amicus brief urging the Court to reject the liability framework adopted by the Fourth Circuit.
They argue that the ruling could lead to widespread loss of internet access based on unproven accusations, with disproportionate consequences for ordinary people.
The brief stresses the importance of online access in modern life, stating: “Internet access is essential to participation in economic, cultural, and social activity.”
The groups caution that adopting a liability standard based on mere knowledge, rather than intent or inducement, would cause serious collateral harm. The brief warns that imposing such rules on ISPs would inevitably result in users being disconnected because someone else in their household or workplace was accused of infringement.
They further argue that the Fourth Circuit’s decision improperly expands secondary copyright liability without congressional authorization, threatening to undermine constitutional protections tied to access, communication, and expression.
Even the US Department of Justice weighed in, siding with Cox on key legal questions. The DOJ told the Court that the Fourth Circuit’s approach “cannot be reconciled with this Court’s precedent” and warned against punishing providers who may simply be indifferent but not complicit.
In its brief, the DOJ stressed: “The evidence demonstrated at most that Cox was indifferent to its subscribers’ infringement, not that Cox intended to participate in that infringement or wished to bring it about.”
On the issue of willful infringement, the DOJ added that “willfulness in the civil context generally requires knowledge or reckless disregard of the fact that one’s own conduct is unlawful,” not just knowledge of someone else’s actions.
A coalition of major tech companies, Google, Amazon, Microsoft, Mozilla, and Pinterest, also submitted a unified brief opposing the lower court’s interpretation of contributory liability. They argue that the DMCA already outlines specific safe harbor rules, and the Fourth Circuit’s ruling improperly weaponizes the absence of safe harbor protection.
“The Fourth Circuit’s ruling erroneously turns Congress’s DMCA safe harbors into a liability-creating mechanism,” the companies stated.
They argued that liability should only attach to those engaged in “conscious, culpable conduct substantially assisting the primary wrongdoer.”
The brief makes clear that a finding of willfulness demands more than simple awareness: “Willfulness turns on the defendant’s mental state regarding its own conduct.”
USIPS criticized the legal foundation of the lower court’s ruling as illegitimate and warned that fear of liability is driving ISPs toward censorship.
The brief offers a critique of how the DMCA has morphed from a legislative compromise into a de facto tool of censorship. According to the authors, “The number of such takedown notices are staggering and the sheer volume further underscores the fact that there cannot be any meaningful review of material subject to a takedown notice to check for such niceties as ‘fair use’ or prior authorization.”
They warn that “lower courts have decided the mere receipt of a DMCA takedown notice nevertheless gives rise to contributory copyright liability,” a legal shift that discourages due process and chills lawful speech.
The brief also highlights how automated systems have enabled bad actors to weaponize copyright claims against dissent and criticism. “Takedown notices are increasingly being used for purely abusive purposes to remove political advertisement, satire, performance art, and online information important to virtually all aspects of modern life,” it states.
In an especially concerning precedent, the Tenth Circuit held that “simply re-posting a takedown notice itself is evidence of contributory infringement liability,” further entrenching legal risk for those who speak out.
The outcome of this case could ripple across every household, library, and small business in the country. If the Supreme Court affirms the Fourth Circuit’s reasoning, ISPs might be pressured to disconnect users after receiving infringement claims, without waiting for any court to confirm wrongdoing.
If you're tired of censorship and dystopian threats against civil liberties, subscribe to Reclaim The Net.
The post The Supreme Court Fight That Could Decide Who Gets to Stay Online appeared first on Reclaim The Net.
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