You might not know it, given the many headlines focused on new questions about copyright and Generative AI, but the year’s biggest copyright case concerned an old-for-the-internet question: do ISPs have to be copyright cops? After years of litigation, that question is now squarely before the Supreme Court. And if the Supreme Court doesn’t reverse a lower court’s ruling, ISPs could be forced to terminate people’s internet access based on nothing more than mere accusations of copyright infringement. This would threaten innocent users who rely on broadband for essential aspects of daily life.

The Stakes: Turning ISPs into Copyright Police

This issue turns on what courts call “secondary liability,” which is the legal idea that someone can be held responsible not for what they did directly, but for what someone else did using their product or service. The case began when music companies sued Cox Communications, arguing that the ISP should be held liable for copyright infringement committed by some of its subscribers. The Court of Appeals for the Fourth Circuit agreed, adopting a “material contribution” standard for contributory copyright liability (a rule for when service providers can be held liable for the actions of users). Under that standard, providing a service that could be used for infringement is enough to create liability when a customer infringes.

The Fourth Circuit’s rule would have devastating consequences for the public. Given copyright law’s draconian penalties, ISP would be under enormous pressure to terminate accounts whenever they get an infringement notice, whether or not the actual accountholder has infringed anything: entire households, schools, libraries, or businesses that share an internet connection. These would include:

• Public libraries, which provide internet access to millions of Americans who lack it at home, could lose essential service.
• Universities, hospitals, and local governments could see internet access for whole communities disrupted.
• Households—especially in low-income and communities of color, which disproportionately share broadband connections with other people—would face collective punishment for the alleged actions of a single user.

And with more than a third of Americans having only one or no broadband provider, many users would have no way to reconnect.

EFF—along with the American Library Association, the Association of Research Libraries, and Re:Create—filed an amicus brief urging the Court to reverse the Fourth Circuit’s decision, taking guidance from patent law. In the Patent Act, where Congress has explicitly defined secondary liability, there’s a different test: contributory infringement exists only where a product is incapable of substantial non-infringing use. Internet access, of course, is overwhelmingly used for lawful purposes, making it the very definition of a “staple article of commerce” that can’t be liable under the patent framework.

The Supreme Court held a hearing in the case on December 1, and a majority of the justices seemed troubled by the implications of the Fourth Circuit’s ruling. One exchange was particularly telling: asked what should happen when the notices of infringement target a university account upon which thousands of people rely, Sony’s counsel suggested the university could resolve the issue by essentially slowing internet speeds so infringement might be less appealing. It’s hard to imagine the university community would agree that research, teaching, artmaking, library services, and the myriad other activities that rely on internet access should be throttled because of the actions of a few students. Hopefully the Supreme Court won’t either.

We expect a ruling in the case in the next few months. Fingers crossed that the Court rejects the Fourth Circuit’s draconian rule.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2025.

Since earliest days of computer games, people have tinkered with the software to customize their own experiences or share their vision with others. From the dad who changed the game’s male protagonist to a girl so his daughter could see herself in it, to the developers who got their start in modding, games have been a medium where you don’t just consume a product, you participate and interact with culture.

For decades, that participatory experience was a key part of one of the longest-running video games still in operation: Everquest. Players had the official client, acquired lawfully from EverQuest’s developers, and modders figured out how to enable those clients to communicate with their own servers and then modify their play experience – creating new communities along the way.

Everquest’s copyright owners implicitly blessed all this. But the current owners, a private equity firm called Daybreak, want to end that independent creativity. They are using copyright claims to threaten modders who wanted to customize the EverQuest experience to suit a different playstyle, running their own servers where things worked the way they wanted. 

One project in particular is in Daybreak’s crosshairs: “The Hero’s Journey” (THJ). Daybreak claims THJ has infringed its copyrights in Everquest visuals and character, cutting into its bottom line.

Ordinarily, when a company wants to remedy some actual harm, its lawyers will start with a cease-and-desist letter and potentially pursue a settlement. But if the goal is intimidation, a rightsholder is free to go directly to federal court and file a complaint. That’s exactly what Daybreak did, using that shock-and-awe approach to cow not only The Hero’s Journey team, but unrelated modders as well.

Daybreak’s complaint seems to have dazzled the judge in the case by presenting side-by-side images of dragons and characters that look identical in the base game and when using the mod, without explaining that these images are the ones provided by EverQuest’s official client, which players have lawfully downloaded from the official source. The judge wound up short-cutting the copyright analysis and issuing a ruling that has proven devastating to the thousands of players who are part of EverQuest modding communities.

Daybreak and the developers of The Hero’s Journey are now in private arbitration, and Daybreak has wasted no time in sending that initial ruling to other modders. The order doesn’t bind anyone who’s unaffiliated with The Hero’s Journey, but it’s understandable that modders who are in it for fun and community would cave to the implied threat that they could be next.

As a result, dozens of fan servers have stopped operating. Daybreak has also persuaded the maintainers of the shared server emulation software that most fan servers rely upon, EQEmulator, to adopt terms of service that essentially ban any but the most negligible modding. The terms also provide that “your operation of an EQEmulator server is subject to Daybreak’s permission, which it may revoke for any reason or no reason at any time, without any liability to you or any other person or entity. You agree to fully and immediately comply with any demand from Daybreak to modify, restrict, or shut down any EQEmulator server.” 

This is sadly not even an uncommon story in fanspaces—from the dustup over changes to the Dungeons and Dragons open gaming license to the “guidelines” issued by CBS for Star Trek fan films, we see new generations of owners deciding to alienate their most avid fans in exchange for more control over their new property. It often seems counterintuitive—fans are creating new experiences, for free, that encourage others to get interested in the original work.

Daybreak can claim a shameful victory: it has imposed unilateral terms on the modding community that are far more restrictive than what fair use and other user rights would allow. In the process, it is alienating the very people it should want to cultivate as customers: hardcore Everquest fans. If it wants fans to continue to invest in making its games appeal to broader audiences and serve as testbeds for game development and sources of goodwill, it needs to give the game’s fans room to breathe and to play.

If you’ve been a target of Daybreak’s legal bullying, we’d love to hear from you; email us at info@eff.org.