Supreme Court Sends DMCA Safe Harbor to the Dustbin

Stephen Carlisle April 9, 2026

On March 25, 2026, in the case of Cox Communications Inc. v. Sony Music Entertainment, the Supreme Court ruled that internet service providers have no obligation to police their services and disconnect customers who use their services to infringe. ¹ This is despite the clear language of the DMCA in order to qualify for safe harbor, the law requires that the ISP

“has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” ²

So how many “repeat infringers” did Cox terminate? 32. ³

I have written about this case several times before. ⁴ But in a surprisingly terse opinion of only 10 pages, the SCOTUS has basically rendered the safe harbor provisions of the DMCA mere surplusage. And as the concurring opinion points out, the majority’s reasoning is “supported neither by precedent or statute.” ⁵ According to the majority opinion, an ISP incurs liability only if it “induced the infringement or the provided service is tailored to that infringement.” ⁶ As the concurring opinion notes

“The majority’s decision…permits ISP’s to sell an internet connection to every single infringer who wants one without fear of liability and without lifting a finger to prevent infringement. It also means that Cox is free to abandon its current policy of responding to copyright infringement.” ⁷

Even counsel for Cox conceded that such a decision would render the DMCA meaningless. At oral argument, the attorney for Cox agreed that the safe harbor provision would not “do anything at all” going forward. ⁸

But what about that pesky DMCA language about terminating repeat infringers? Pish tosh, says the majority.

“The DMCA merely creates new defenses from liability for such providers.” ⁹

But if there is no liability to begin with, why do you need additional defenses?