Supreme Court Merges Two Types Of Contributory IP Infringement Into One

The Supreme Court recently decided on two cases: one on copyright infringement and one on patent infringement. These may have far-reaching consequences beyond the factual scenarios of the two cases, narrowing the scope of liability for secondary copyright and patent infringement to situations in which the secondary actor has specific intent to infringe and converging two theories of secondary infringement.

Secondary infringement is not subject to strict liability; intent is required

In a case handed down by the Supreme Court on March 25, 2026, Justice Thomas begins, "Countless people use the internet for legal activities, but some use it to illegally share copyrighted works, such as songs and movies. The Copyright Act authorizes copyright owners to sue these copyright infringers."¹ The rule seems clear: a copyright infringer may be sued. Yet, questions remain as to who is a "copyright infringer."

Facially, the person who actively does the illegal sharing or other copyright violation is a primary infringer of copyright and is strictly liable. The law teaches that others who play a part in infringement may be considered secondary infringers.

A party who "actively induces" infringement or sells a service that is "especially tailored" for infringement with "no substantial non-infringing uses" may be liable for contributory infringement. In patent law, these types of infringement are codified in 35 U.S.C. § 271(b) and (c), respectively. They are also applicable to copyright law, which has a "historic kinship" with patent law (Cox).²

Under long-established and newly clarified law, an alleged contributory infringer is not contributorily liable for inducement without intentional and active participation in an infringement.

In some cases, such as in the two recent Supreme Court cases, the inquiries into intent for inducement and the "especially tailored" theory converge. In those scenarios, a secondary infringement where there are both infringing and non-infringing uses of the protected content, whether patent or copyright, will not arise unless there is intent to promote and encourage the infringing use.

The Court holds that induced copyright infringement and induced patent infringement require intent to infringe

Cox Communications is an internet service provider ("ISP"), providing the network necessary for people to gain access to the internet. In the lawsuit, Sony accused Cox of being a secondary infringer because it provided known infringers with access to the internet that they needed to complete their infringing act — sharing copyrighted music online.³

The users of the network are strictly liable for primary copyright infringement, but those infringers were not party to the case. Instead, Sony sued Cox for secondary infringement.

The Court held that Cox was not liable in this case because it did not have the requisite intent to infringe, which is shown only if the accused secondary infringer "induced the infringement or the provided service is tailored to that infringement." This statement merges the two types of contributory infringement.

In Cox, neither type of contributory infringement was implicated. Cox had taken affirmative steps to reduce infringement over its network and required its customers to contractually agree not to use the internet network to infringe on others' copyrights.

Further, the provision of internet service is not "especially tailored" for infringement; as Justice Thomas wrote, the internet is used for all kinds of purposes. The Court underscored that active inducement must include an intent to infringe.

In another recent case, the Court held that the same intent to infringe is required to prove induced infringement in the patent context. Hikma Pharmaceuticals USA Inc. v Amarin Pharma.⁴

Hikma manufactures and sells generic drugs. The lawsuit concerned a generic drug that Hikma sold with an indication to treat severe hypertriglyceridemia. That indication was not patented.

Amarin, the manufacturer of the brand name drug to which Hikma's generic drug was equivalent, held a patent for the use of the drug to treat cardiovascular risk. Amarin sued Hikma for secondary patent infringement of the cardiovascular risk patent.

In this case, the primary infringer was the patient who used the drug. Again, the primary infringers were not party to the case. Amarin accused Hikma of inducing infringement of the cardiovascular risk patent based on various statements that Hikma had made about the drug, which possibly, taken together could show inducement for the patient to use the drug to treat cardiovascular risk.

Even though it was undisputed that the primary infringers used the drug for infringing purposes, the Court held that Hikma had not induced that infringement; it sold the drug only for a non-infringing indication. Its statements did not show the requisite intent to induce infringement of the patented use.

Cox and Hikma underscore that intent is necessary for a party to be liable for contributory infringement, thereby weakening the doctrine of contributory liability

The Cox holding is that contributory infringement cannot rest merely on providing a product capable of infringement; rather, liability depends on affirmative encouragement of infringing uses.

This shows a convergence of and overlap between inducement and the "especially tailored" types of contributory infringement: (1) there is no active encouragement (inducement), because (2) only substantial non-infringing uses are encouraged ("especially tailored"). If the encouragement is for the non-infringing uses, there is no inducement.

In Cox, at least, as Justice Thomas said, non-infringing uses of internet services are more common than infringing uses of internet services; the non-infringing use, therefore, must be substantial. Here, the two types of contributory infringement have converged: one fact‒substantial non-infringing uses — acts to defeat both theories.

Similarly in Hikma, the Court held that because Hikma's drug was sold for a non-patented indication, there was no active inducement. The non-patented indication is a widespread use of the product (i.e., it is substantial and non-infringing). Here, too, the two inquiries of inducement and "especially tailored" converge.

There may be some factual scenarios in which a party can escape liability for actively inducing infringement but still be liable for infringement under the "especially tailored" theory of infringement, and vice versa.

These cases, however, are likely to be rare, considering the Supreme Court's holdings regarding lawful uses of a product and affirmative encouragement of infringement. At least in some cases, the two types of contributory infringement collapse into one.

Footnotes

1. Cox Communications Inc. v. Sony Music Entertainment, 146 S. Ct. 959 (2026).

2. In many cases, it may be more efficient to sue a secondary infringer, either because a secondary infringer may have more resources to satisfy a judgment than the primary infringer, or because suing a secondary infringer often captures many instances of infringement within a single lawsuit or both.

3. Sony had sued under two theories of secondary liability: contributory infringement and vicarious infringement. The Court of Appeals (4th Circuit) had held that there was no vicarious infringement and that there was contributory infringement. The Supreme Court only considered contributory infringement and reversed the circuit court on that theory.

4. 146 S. Ct. 1391 (2026).

Originally published by Westlaw Today.