Is “Material Contribution” To Another’s Infringement Enough To Establish Liability For Contributory Copyright Infringement?

Listen to this post

Last week, the Supreme Court vacated a copyright infringement judgment against an ISP provider and remanded the case to the Fifth Circuit for reconsideration in light of the Cox Communications decision (Grande Comm’s Networks v. UMG Recordings, Inc., 2026 WL 922501, at *1 (U.S. April 6, 2026)). Specifically, the Court directed the Fifth Circuit to reconsider its prior decision upholding a contributory infringement liability verdict against ISP Grande Communications Networks.

The Fifth Circuit concluded that a Texas federal district court had correctly upheld a jury verdict finding Grande Communications Networks liable for the willful contributory copyright infringement of over 1,400 songs after being made aware that its service subscribers were peer-sharing copyrighted songs. At the trial court level, the record label plaintiffs claimed Grande Communications Networks was liable for secondary copyright infringement for failing to ban its subscribers who the labels had accused of illegally sharing copyrighted material through the software BitTorrent. On the issue of contributory copyright infringement, the three-judge panel of the Fifth Circuit determined that the district court applied the correct legal standard by determining that Grande Communications Networks could be secondarily liable for copyright infringement committed by its subscribers “if it induced, caused, or materially contributed to its subscribers’ infringing activity.”

Grande Communications Networks argued before the district court that material contribution is not a valid basis for contributory copyright liability because “the Supreme Court has recognized two — and only two — types of contributory copyright infringement: (1) where the defendant distribute[s] a product or service without any commercially significant, non-infringing use, and (2) where there is clear expression or other affirmative steps taken to foster infringement by the defendant.” The district court instructed the jury that Grande Communications Networks was contributorily liable if it induced, caused, or materially contributed to the infringing activity, and that this standard was met if Grande Communications Networks “could have taken basic measures to prevent further damages to copyrighted works, yet intentionally continued to provide access to infringing sound recordings.” In its opinion, the Fifth Circuit panel — relying in significant part on the Fourt Circuit’s decision that was reversed in the Cox Communications case — found that there was “no basis to reverse the jury’s verdict that Grande is liable for contributory infringement” because “(1) intentionally providing material contribution to infringement is a valid basis for contributory liability; (2) an ISP’s continued provision of internet services to known infringing subscribers, without taking simple measures to prevent infringement, constitutes material contribution; and (3) the evidence at trial was sufficient to show that Grande engaged in precisely that conduct[.]”

Recall that in the Supreme Court’s March 25 decision Cox Communications v. Sony Music Entertainment, which was the subject of a previous blog post, the Court held that Cox Communications, also an internet service provider, could only be found to be contributorily liable for copyright infringement if it affirmatively induced infringement by a subscriber or offered a service designed primarily for infringing uses. In Cox Communications, the Court held that an ISP cannot be held contributorily liable for copyright infringement merely because it continued providing internet service to its subscribers who had been the subject of infringement complaints, and that contributory liability requires proof that the provider actually intended its service to be used for infringement — shown either through active inducement or by offering a service with no substantial non-infringing uses. The holding in Cox Communications appears to vindicate Grande Communications Networks’ position before the trial court, as well as setting a significantly higher bar for contributory copyright infringement than the “material contribution” standard applied by the district court and Fifth Circuit.