Document Type

Article

Publication Date

5-2026

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Introduction: 

In the weeks since the Supreme Court’s unanimous judgement concerning the standard for contributory copyright infringement in Cox Communications, Inc. v. Sony Music Entertainment, 146 S. Ct. 959 (2026), there has been sharp criticism of the Court’s ruling, particularly Justice Thomas’s opinion for the majority. Shira Perlmutter, the Register of Copyrights, argued that the decision ignored decades of lower court precedents, and might require Congressional correction.[1] Copyright scholar Paul Goldstein asserted that the Cox decision substituted an objective test for contributory copyright infringement with a subjective one.[2] What both Register Perlmutter and Professor Goldstein overlooked is that the Supreme Court in Cox faithfully applied its 2005 holding in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). In other words, their dispute really is with Grokster, not Cox. The central flaw in their analysis is that they, like many lower courts, misunderstood Grokster. In Grokster, the Supreme Court rejected the knowledge-based standard for contributory infringement adopted by the lower courts such as the Second Circuit in Gershwin Publ’g Corp. v. Columbia Artists Mgmt., 443 F.2d 1159, 1162 (2d Cir. 1971), in favor of a standard based on culpable intent. The lower courts, however, erroneously continued to apply their pre-Grokster, Gershwin-inspired knowledge-based precedents. In Cox, the Supreme Court affirmed its holding in Grokster. The Cox Court said, in effect, we really meant what we said in Grokster—that liability for contributory infringement requires not just knowledge that infringement is occurring, but intent to foster that infringement.[3]

            Moreover, Cox made clear that Grokster’s intent-based standard was not a departure from its precedent, but rather a faithful application of the Supreme Court’s decision in Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). In essence, Cox ruled that it was the knowledge-based standard applied by the courts of appeals that was a departure from the Supreme Court’s rulings on contributory infringement. Thus, contributory copyright infringement liability has required a showing of culpable intent for over a century. Cox thus finally laid the Second Circuit’s Gershwin decision to rest.

            Significantly, Justice Thomas’s decision in Cox closely followed not only Grokster, but also the interpretation of Grokster advanced by the Solicitor General of the United States in his amicus briefs at the cert. and merits stages. Register Perlmutter’s hostility towards Cox thus reflect only her views, and not those of the United States.

            A proper understanding of the history of contributory infringement should reduce the anxiety of copyright owners on the impact of the Cox decision and the need for Congressional intervention.

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