Re-decided holding: Cox is not contributorily liable because the Copyright Act does not authorize secondary liability for mere failure to terminate service, and any such liability must be created by Congress under Article I, Section 8, Clause 8, with clear statutory language.

1) The question is whether the Copyright Act, as understood at the time of its enactment and consistent with the original meaning of Article I, Section 8, Clause 8, permits a court to impose contributory liability on an Internet service provider for failing to terminate service to subscribers who infringe copyrights, without proof that the provider induced the infringement or provided a service designed for infringement. 2) The relevant constitutional text is Article I, Section 8, Clause 8, which grants Congress the power 'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' The Copyright Act of 1790 and subsequent revisions defined infringement as direct acts of copying, printing, publishing, or vending without authorization. No provision in the original Act or its early amendments imposed liability for aiding or abetting infringement. 3) At ratification, the understanding was that copyright was a limited monopoly granted by Congress, and remedies were strictly statutory. The First Congress did not include secondary liability, and the common law of torts did not automatically apply to federal copyright claims because the Constitution's grant of power was exclusive to Congress. The Tenth Amendment reserved to states the power to define tortious conduct, including contributory infringement, unless Congress explicitly occupied the field. 4) The holding is that Cox is not contributorily liable. The Copyright Act, as originally understood, does not authorize secondary liability for merely providing a general-purpose service (Internet access) with knowledge of infringement. Congress must enact a clear statutory provision if it wishes to impose such liability, consistent with Article I, Section 8, Clause 8. The DMCA safe harbor (17 U.S.C. §512) does not create liability; it only provides a defense. 5) Downstream, this means that copyright owners cannot sue ISPs for contributory infringement based solely on failure to terminate service after receiving notices. Congress may, if it chooses, pass a law specifying conditions for ISP liability, but until then, the remedy for infringement lies against the direct infringer under state law or federal criminal statutes.