The Warning from the Concurrence

Justice Sotomayor's concurrence in Cox Communications v. Sony Music agrees with the judgment but rejects part of the majority's reasoning. This chapter examines that disagreement as a legal argument, not as a second holding. The concurrence asks whether common-law aiding and abetting remains available beyond the two routes the majority identified, then explains why Cox would still win because the record did not show that it intended to help specific infringement. It also warns that the majority's rule may weaken the DMCA's incentives for providers to respond.

That combination makes the concurrence important. It does not say that Cox should lose. It says that the Court reached the right outcome while describing the law too narrowly. The result is a useful test of disciplined legal reading: a majority's rule controls the judgment, while a concurrence can identify unresolved doctrine, competing principles, and consequences that the judgment does not settle.

What the concurrence says the majority left out

The majority began from a proposition the concurrence accepted: a provider must have the requisite intent for contributory liability. The disagreement came in the next step. The majority said that intent can be shown only through inducement or an infringement-tailored service. Justice Sotomayor argued that Sony and Grokster did not impose that exclusive limit. In her reading, those decisions preserved other fault-based rules derived from the common law, including aiding and abetting.

The dispute is about the scope of precedent, not about whether ordinary service is automatically unlawful. The majority treated the two routes as the recognized boundaries for the contributory-liability question before it. The concurrence read the same cases as preventing courts from inferring culpable intent from a product's characteristics alone while leaving other evidence-based common-law theories available. Both sides therefore accepted a role for intent; they disagreed about how many legal paths can lead to it.

Aiding and abetting supplies the concurrence's alternative. Drawing on the Supreme Court's discussion in Twitter v. Taamneh, the concurrence described the core idea as conscious and culpable participation in a wrongful act in a way that helps make it succeed. The defendant must take an affirmative act with the intent of facilitating the offense. Routine conduct that happens to assist a wrong is generally not enough, because the law distinguishes ordinary participation in society from purposeful help.

This framework is demanding in a way that matters for Cox. The concurrence did not argue that knowledge of repeated infringement automatically proves aiding and abetting. It emphasized that intent can sometimes be inferred from knowledge when the consequences are certain or substantially certain to result from the defendant's act, but the required knowledge must be sufficiently specific. A generalized awareness that some users will infringe is not the same as an intent to help a particular wrongful act succeed.

The concurrence used other recent cases to illustrate the point.