Decorative Safe Harbors: The Judicial Hollowing-Out of Intermediary Accountability
The U.S. Supreme Court just made it much harder to hold at least some internet intermediaries liable for what their users do. And in the process, it may have made key statutory safe harbors largely irrelevant.
The Court’s unanimous reversal of the billion-dollar copyright verdict against Cox Communications has drawn predictable headlines. Some commentators cast it as a reprieve for “mere conduit” internet service providers (ISPs) from overzealous copyright enforcement. At a doctrinal level, that’s at least directionally right: an ISP that provides undifferentiated internet access does not incur secondary copyright liability simply because some subscribers use that connection to pirate content.
But the decision’s real significance likely lies elsewhere. Its importance extends beyond the immediate holding to a more consequential question: how courts calibrate legal protections for online platforms and their management of user-generated content.
That shift deserves closer attention. It signals a growing judicial willingness to revisit longstanding immunities. Cox fits into an emerging line of cases—including Twitter v. Taamneh and Gonzalez v. Google—that increasingly render statutory safe harbors decorative by narrowing the scope of background secondary liability. The implications reach directly to issues we, along with Kristian Stout, explored in “Who Moderates the Moderators?: A Law & Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet.”