Advanced Copyright Law on the Internet

(z) Oppenheimer v. Allvoices

In this case, the plaintiff brought claims for copyright infringement for unlicensed use of
his photographs on the defendant Allvoices’ web site. Allvoices was an online service provider
that operated a web site set up as a community for its users to share and discuss news, by
contributing related text, video and images, and commenting. Citizen journalists who posted
news, videos, images and commentary were paid consideration for their article contributions
based on the popularity of, and web traffic to, their articles. Allvoices filed a motion to dismiss
the plaintiff’s direct infringement claim on the basis that it could not have direct liability under
the volitional conduct requirement. The court noted that, although the Netcom requirement of
volitional conduct for direct liability had been adopted by the Second and Fourth Circuits, the
Ninth Circuit had not yet addressed the issue, and district courts within the Ninth Circuit were
split on the issue. But even if a direct copyright infringement claim requires a plaintiff to allege
that the defendant engaged in volitional conduct that caused the infringement, the court found the
plaintiff had done so. Contrary to Allvoices’ suggestion, the plaintiff had not alleged that
contributors infringed the plaintiff’s photographs on their own by uploading them onto
Allvoices. Rather, the plaintiff’s first amended complaint alleged that Allvoices, both directly
and through contributors, reproduced and displayed the photographs without the plaintiff’s
permission. Such allegations were sufficient to deny the defendant’s motion to dismiss the direct
infringement claim.^272

(aa) The Supreme Court’s Aereo Decision

Although the Supreme Court’s majority opinion in American Broadcasting Co. v. Aereo,
Inc.^273 did not address the volitional conduct requirement in copyright law, a strong dissenting
opinion by Justice Scalia articulated the position that the volitional conduct doctrine, though not
ever addressed expressly by the Supreme Court, had become well established in the appellate
courts, was consistent with Supreme Court precedent, and Aereo could not be found to have
“performed” the works at issue by virtue of that doctrine. See the discussion of the case in
Section II.B.10 below.

(bb) Gardner v. CafePress

The case of Gardner v. CafePress Inc.^274 was the first case decided after the Supreme
Court’s Aereo decision to rule that Aereo did not eliminate the volitional conduct requirement
for direct liability. CafePress operated an e-commerce site that allowed users to upload images
of artwork, slogans and designs for printing by CafePress on items such as shirts, bags and mugs.
The images were uploaded at the direction of CafePress users and were stored on CafePress’s
servers through its web site. CafePress users could also offer the uploaded images for sale to
third parties who then selected one of CafePress’s unbranded items on which to print the images.
Several CafePress users uploaded copies of the plaintiff’s works to CafePress’s service without

(^272) Oppenheimer v. Allvoices, Inc., 2014 U.S. Dist. LEXIS 80320 at *1-2, 19-22 (N.D. Cal. June 10, 2014).
(^273) 134 S. Ct. 2498, 2504 (2014).
(^274) 2014 U.S. Dist. LEXIS 168328 (S.D. Cal. Dec. 4, 2014).