Denicola on Volition and Copyright Infringement

Robert Denicola, University of Nebraska College of Law, is publishing Volition and Copyright Infringement in volume 37 of the Cardozo Law Review. Here is the abstract.

When should Internet service providers or other system owners be directly liable for copyright infringements committed by the users of their systems? In a 2014 dissent in American Broadcasting Cos. v. Aereo, Justice Scalia sought an answer to that question in “a simple but profoundly important rule” of copyright law: “A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act.” Scalia’s “profoundly important rule,” however, is hardly an accepted bedrock of copyright law. As he himself admitted, the Supreme Court had never previously used the word “volition” in the context of copyright, nor have a majority of the federal courts of appeals. The leading treatise on copyright law calls the “volition” element “revolutionary.” It is a startling debate, coming as it does more than two centuries after Congress first imposed liability for copyright infringement. “Volition” in copyright law has come to mean much more than the traditional inquiry into the voluntariness of a defendant’s conduct. It is best understood as requiring a connection between the service provider and the infringed work that is sufficiently robust to allow the provider to control the infringement without the necessity of monitoring the conduct of third-party users. The doctrine serves a basic channeling function. If the only way for a service provider to avoid infringement is to monitor and police the conduct of third parties, the provider’s potential liability for any resulting violations should be determined not on the basis of principles governing direct liability but instead under the rules that determine secondary liability for infringements committed by others.

Download the article from SSRN at the link.