Internet Access, Free Speech, and the Dangerous Expansion of Private Enforcement
Drafted Opinion by Matt Pierce
This case is not a debate about whether piracy is wrong. It is wrong. The question is whether the Supreme Court should adopt a rule that effectively pressures internet service providers to cut off Americans from the internet based on repeated accusations by private rightsholders. If the Court endorses that approach, it will expand the enforcement role of private companies into an area that touches basic civil liberties, modern speech, education, work, and daily life. That shift should make any constitutionalist uneasy, even one who strongly supports property rights and lawful markets.
Sony and the record labels make a serious and legitimate argument. Copyright exists for a reason. The Constitution empowers Congress to secure rights to authors and inventors in order to promote progress. That incentive structure matters. A society that tolerates large-scale infringement without meaningful remedies does not defend artists, creators, or the public interest. The labels also argue that contributory liability is not a new invention. Courts have long recognized that you can be responsible when you knowingly and materially assist ongoing infringement. From their perspective, an ISP that keeps servicing repeat offenders after receiving repeated notices is not merely a neutral conduit. It is an enabling actor.
That is a strong case in principle. It sounds like common sense. It also has moral force. Yet constitutional law does not run on moral force alone. It runs on limiting principles, predictable rules, and an awareness of collateral damage. That is where the labels’ position begins to break down.
The core weakness is that the labels’ approach pushes ISPs toward termination as the “safe” option, not because termination is just, accurate, or proportionate, but because it reduces the ISP’s legal exposure. That dynamic matters. When the penalty for getting it wrong is catastrophic civil liability, businesses will overcorrect. The predictable result is disconnection first and due process never. That is not a free society’s model of enforcement. It is liability driven privatized punishment.
The First Amendment is not limited to newspapers and protest signs. It protects the conditions under which speech and association can occur. In 2025, those conditions include internet access. Internet service is not a luxury add-on for many Americans. It is the infrastructure of daily communication. It is how people search for jobs, finish school assignments, contact family, get news, communicate with doctors, and participate in the modern public square. When a rule pressures an ISP to terminate access based on a stack of allegations, the collateral damage is not abstract. It is civic and personal.
The danger is even sharper because infringement notices are not courtroom findings. They are claims. Many are automated. Many rely on IP address identification, which is a messy substitute for identifying actual individuals. Households share connections. Businesses share connections. Universities and hospitals share connections. Libraries share connections. A policy that penalizes an entire account based on repeat allegations risks punishing innocent users along with the accused. The Constitution has always been skeptical of regimes that impose sweeping penalties while bypassing meaningful fact-finding.
There is also a basic structural problem. An ISP is not designed to adjudicate copyright disputes. It is designed to transmit data. In many common scenarios, the ISP does not have the content at issue and cannot reliably verify what a notice claims after the fact. When the law incentivizes termination anyway, it effectively forces ISPs to act as enforcers without the tools, procedures, or legitimacy of a court. That expands the role of business beyond service provision and into rights adjudication. That is a serious change in the balance between private power and individual rights.
Supporters of the labels may reply that no one is entitled to internet service from a particular company, that Cox is a private actor, and that contractual relationships can include termination policies. That response sounds tidy but it misses reality. In many regions, there are limited broadband options. Termination by one provider can mean loss of access entirely. This is not like being banned from one social media site. It is closer to being cut off from the practical means of modern participation. When that cut-off happens on the basis of allegations, pressure, and risk management, constitutional values are implicated even if the actor is nominally private.
The law of secondary liability should not become a shortcut to mass disconnection. A better rule is narrower and more consistent with constitutional principles. Contributory liability should require clear, affirmative, culpable assistance in specific infringement, not merely continuing to provide a general-purpose service in response to unverified notices. Knowledge should mean more than awareness that allegations exist. Material contribution should mean more than offering the same access offered to everyone else. If the standard is loosened to the point where repeated allegations and continued service become enough, then every infrastructure provider becomes vulnerable to being turned into an enforcement proxy.
None of this excuses infringement. It simply insists that enforcement remain lawful, targeted, and proportional. Copyright law exists to promote progress, not to justify a system where Americans can lose access to the communications backbone of modern life because a private company is scared of being sued. The labels’ argument is compelling as a statement of rights. It fails as a rule for a constitutional society because it offers no limiting principle that protects lawful users, due process values, and free speech interests from overbroad termination incentives.
For these reasons, the Constitution and the American tradition of restrained enforcement point toward Cox. Not because the record labels are wrong to defend their property, but because the remedy they seek effectively expands private enforcement into the realm of basic access and everyday human life. The Court should reject any standard that pressures ISPs to become speech gatekeepers and punishment mechanisms. That is not how Americans have historically handled rights disputes, and it is not how a free people should handle them now.
