the defendants. The defendants created designated servers for newsgroups containing music
binary files to increase their retention time over other types of Usenet files.^171
The plaintiffs contended that the defendants directly infringed their copyrights by
engaging in unauthorized distribution of copies of their musical works to subscribers who
requested them for download. The court, relying on the Netcom and Cablevision cases, ruled
that a finding of direct infringement of the distribution right required a showing that the
defendants engaged in some volitional conduct sufficient to show that they actively participated
in distribution of copies of the plaintiffs’ copyrighted sound recordings. The court found
sufficient volitional conduct from the following facts. The defendants were well aware that
digital music files were among the most popular files on their service, and took active measures
to create spool servers dedicated to MP3 files and to increase the retention times of newsgroups
containing digital music files. They took additional active steps, including both automated
filtering and human review, to remove access to certain categories of content (such as
pornography), while at the same time actively targeting young people familiar with other file-
sharing programs to try their services as a supposedly safe alternative to peer-to-peer music file
sharing programs that were getting shut down for infringement. From these facts, the court ruled
that the defendants’ service was not merely a passive conduit that facilitated the exchange of
content between users who uploaded infringing content and users who downloaded such content,
but rather the defendants had so actively engaged in the distribution process so as to satisfy the
volitional conduct requirement. Accordingly, the court granted the plaintiffs’ motion for
summary judgment on their claim for direct infringement of the distribution right.^172
(p) Quantum Systems v. Sprint NextelIn Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp.,^173 Quantum sued Sprint for
copyright infringement based on the automated loading of Quantum’s software into the RAM of
13 Sprint computers from unauthorized copies on the hard disk when those computers were
turned on or rebooted. The jury found liability and Sprint argued on appeal that the district court
erred in denying its JMOL motion and sustaining the jury’s finding of infringement because
there was no evidence that Sprint engaged in volitional copying, since the RAM copies were
automatically generated when the computers containing unauthorized, but unutilized, copies of
the software on the hard disk were turned on. The court rejected this argument, distinguishing its
Costar decision, which involved an ISP that merely provided electronic infrastructure for
copying, storage, and transmission of material at the behest of its users. By contrast, in the
instant case the copying was instigated by the volitional acts of Sprint’s own employees who
(^171) Id. at 130-31.
(^172) Id. at 132, 146-49. As a sanction for litigation misconduct, including spoliation of evidence and sending key
employees out of the country on paid vacations so they could not be deposed, the court precluded the
defendants from asserting an affirmative defense of protection under the DMCA’s safe harbor provisions. Id. at
137-42.
(^173) 2009 U.S. App. LEXIS 14766 (4th Cir. July 7, 2009).