(cc) Summary of Case LawTo sum up, under a majority of the cases, a direct volitional act of some kind is required
for liability for direct copyright infringement. The MAPHIA and Sabella, Cablevision, and
Hotfile cases suggest that it is insufficient for direct liability for an actor such as a BBS or web
site operator to have provided only encouragement of the acts (such as initial uploading of
unauthorized copies) that lead to infringement. Similarly, the CoStar, Ellison and Perfect 10 v.
Cybernet Ventures cases suggest that an OSP will not have direct liability for infringing material
posted on its service by users or available through its service on third party sites where the OSP
has not encouraged such posting or had advance knowledge of it. And the Field v. Google and
Parker v. Google cases hold that a search engine operator will not have direct liability for serving
up cached copies of copyrighted materials in an automated response to user requests based on
search results. Rather, for direct liability the defendant must have engaged in the very acts of
infringement themselves in a volitional way. The Perfect 10 v. Giganews case, while agreeing
with Netcom that a volitional act is required for direct infringement, equated the “volitional
conduct” requirement with a requirement of causation, not intent. That 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.
However, the Frena, Webbworld, Sanfilippo, Quantum Systems, Megaupload and ReDigi
cases (as well as the Hardenburgh and Webbworld cases discussed in Section II.C below with
respect to the public display and distribution rights) suggest that where an actor such as a BBS
operator or web site operator has some form of substantial direct involvement in the anticipated
acts that lead to infringement or in the infringing acts themselves (such as resale of the infringing
material), there may be a finding of sufficient volitional activity to impose direct liability. And
the Arista Records v. Usenet.com case suggests that direct liability for violation of the
distribution right can be premised on active promotion of sharing of illicit files coupled with
close control over what types of material are featured for distribution in the first instance. Thus,
to establish direct liability for infringement one must look at whether the defendant participated
in the very acts of infringement themselves.
One district court case – the Myxer case – simply refused to adopt the volitional
requirement for direct infringement, noting that the Ninth Circuit had never expressly adopted
the volitional requirement and finding such a requirement to be inconsistent with copyright
infringement being a strict liability tort. The Ninth Circuit subsequently did, however, expressly
adopt the volitional requirement in the 2014 Fox Broadcasting v. Dish Network case.
As discussed in Section III.C below, the Digital Millennium Copyright Act^281 (referred to
herein as the “DMCA”) defines certain safe harbors against liability for OSPs who act as merely
passive conduits for infringing information and without knowledge of the infringement. An OSP
must meet quite specific detailed requirements to qualify for the safe harbors relating to acting as
a passive conduit and innocent storage of infringing information. Where an OSP does not
(^281) Pub. L. No. 105-304, 112 Stat. 2860 (1998).