ABSTRACT
Historically, and consistently, direct copyright infringement has been understood to be a strict liability tort. Unfortunately, some recent lower court decisions addressing infringement of copyrighted content on online platforms could be read, wrongly, to require copyright owners to prove ‘volitional conduct’ by alleged infringers. Yet the Copyright Act nowhere contains any such volitional conduct requirement and the US Supreme Court has never recognized such requirement in direct infringement cases. Lamentably, any uncertainty regarding a potential volitional conduct requirement makes it more difficult to ensure accountability by online platforms for mass infringement taking place on user-upload websites.
The principle that volition (or intent) has no role to play in determining whether copyright infringement has occurred is long-standing and well established in both English and American jurisprudence.
To increase platform accountability for online infringement, both the courts and Congress need to ensure that there are clear, strict liability rules regarding direct copyright infringement. Attention, deservedly, has been placed on refining statutory safe harbors from legal liability in order to ensure online platforms take more responsibility for infringing activities on their sites. But even when online platforms are ineligible for safe harbor treatment, copyright owners still have the burden of proving direct copyright infringement. This paper therefore focuses on direct infringement in the context of online platform accountability.
May, Randolph J and Cooper, Seth L, Volition Has No Role to Play in Determining Copyright Infringements (September 9, 2019). Perspectives from FSF Scholars, volume 14, no 21, 2019.
First posted 2019-10-05 07:12:31
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