on Netcom’s causation analysis, although the court (inexplicably) did not cite the Ninth Circuit’s
decision in Fox Broadcasting v. Dish Network (discussed in Section II.A.4(u) above), which did
expressly adopt a volitional conduct requirement. The court noted some district court decisions
in California that had not adopted the Netcom volitional conduct requirement, but declined to
follow them. Although the court found the Netcom court’s passing use of the term “volition” to
be somewhat confusing, as it might suggest a level of intent or willfulness that has no place in a
claim for copyright infringement, the court found that the so-called “volition” element of direct
infringement is not a judicially-created element of intent or knowledge, but rather is a basic
requirement of causation. Specifically, direct liability must be premised on conduct that can
reasonably be described as the direct cause of the infringement with a nexus sufficiently close
and causal to the illegal copying that one could conclude the alleged infringer himself trespassed
on the exclusive domain of the copyright owner.^252
Turning to each of the defendants separately, the court ruled with respect to Giganews
that Perfect 10 could not prove causation for direct infringement as a matter of law. The court
rejected Perfect 10’s reliance on various cases that allegedly read the inaptly-named “volitional”
conduct requirements as focusing on the defendant’s awareness or state of mind, rather than on
who actually caused the infringement. The court held that a claim of direct liability requires
evidence that the defendants directly or actively caused the infringement, and Perfect 10’s
continued insistence that the defendants allowed their subscribers to upload, download, and view
infringing material was the stuff of indirect or secondary liability, not direct liability. The court
also found that Perfect 10 had failed to introduce any evidence on the single theory that Judge
Collins had allowed to go forward – specifically, there was no evidence that Giganews’
employees or agents themselves uploaded, downloaded, otherwise copied, displayed, or modified
any work to which Perfect 10 held a copyright. All other bases on which Perfect 10 continued to
allege direct liability had been previously rejected by both Judge Matz and Judge Collins, and
Judge Birotte found no reason to depart from their previous analysis. After extensive discovery,
the evidence before the court merely showed that Giganews offered its subscribers access to
servers for a flat monthly fee, and there was no evidence that Giganews specifically sold access
to Perfect 10 copyrighted materials as opposed to access to the entire USENET (of which Perfect
10 content was a fraction of a fraction), or even to erotic content in general.^253
With respect to Livewire, the court found the evidence of direct infringement to be even
more sparse. The sum total of evidence before the court was that Livewire paid Giganews to
provide subscribers access to Giganews’ USENET servers and, in turn, charged its subscribers a
fee to access those servers. There was no evidence that Livewire operated any USENET servers
of its own, or that any infringing material had ever appeared on any of the Web servers Livewire
did own and operate. In denying Livewire’s previous motion to dismiss Perfect 10’s claim for
direct infringement, Judge Collins had relied exclusively upon Perfect 10’s allegation that
Livewire sold the infringing material it received from Giganews at different prices, depending on
usage. Despite extensive discovery, however, there was no evidence to support the allegation
that Livewire sold any of Perfect 10’s copyrighted material. Indeed, there was no evidence that
(^252) Id. at pp. 9-10.
(^253) Id. at *pp. 12-13.