view, the key to understanding the so-called ‘volitional conduct’ requirement is to equate it with
the requirement of causation, not intent. ‘Just who caused the copyright material to be
infringed?’ The Second Circuit’s opinion in Cartoon Network is particularly helpful in this
regard. In the words of that court, ‘the question is who made this copy.’”^241 The court cited the
Cybernet Ventures and MAPHIA cases approvingly for their descriptions of the volitional
conduct requirement as requiring that the defendant must “actively engage” or “directly cause”
the infringing activity in order to be held liable for direct infringement.^242
Applying these standards to the facts of the case, the court found that the plaintiff had not
alleged that the defendants were the direct cause of, or actively engaged in, direct infringement.
The plaintiff had alleged that the defendants copied all of the material on their servers from
content uploaded onto USENET, stored these materials, most of which were infringing, on their
servers, programmed their servers to distribute and download the infringing content, and
controlled which materials were distributed to and copied from other third party servers. The
court ruled that these facts did not indicate that it was the defendants themselves that committed
the acts of copying, displaying or distributing the plaintiff’s copyrighted content and, as in
Netcom, the defendants had merely engaged in the act of designing or implementing a system
that automatically and uniformly created temporary copies of all data sent through it. Such
conduct did not constitute a volitional act.^243
Nor did the plaintiff’s allegations regarding the defendants’ knowledge of the pirated
content on its servers salvage the plaintiff’s direct infringement claim. As the Netcom court
pointed out, knowledge is not a required element of direct infringement, and the court ruled that
a participant in the chain of events that ultimately allows viewers to obtain infringed material
does not become the direct cause of the copying merely because he learned of it. The court
noted that the Arista Records v. Usenet, MegaUpload, MP3tunes, and Playboy Enterprises cases
had taken into account a defendant’s knowledge in determining whether that defendant engaged
in volitional conduct, but disagreed with those decisions.^244 “By focusing on the defendant’s
awareness or state of mind – rather than on who actually caused the infringement – these cases
effectively hold defendants liable for copyright infringement committed by third parties without
requiring a full assessment of the additional elements of secondary copyright infringement
claims.”^245
Moreover, the court held the plaintiff’s allegation that the defendants controlled the
content on their servers, without a good faith allegation specifying how the defendants exercised
that control to directly create copies, could not alone create an inference that the defendants
(^241) Id. at 17 (citations omitted).
(^242) Id. at 18.
(^243) Id. at 21-22.
(^244) Id. at 22-25.
(^245) Id. at *25.