Volition Has No Role to Play in Determining Copyright Infringements

Perspectives from FSF Scholars, Vol. 14, No. 21, 2019

14 Pages Posted: 2 Oct 2019

See all articles by Randolph J. May

Randolph J. May

The Free State Foundation

Seth L. Cooper

The Free State Foundation

Date Written: September 9, 2019

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 U.S. 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.

Keywords: Copyright, Intellectual Property, Online Platform Accountability, Copyright Clause, Copyright Act

JEL Classification: K10, K11, K13, K19, K30

Suggested Citation

May, Randolph J. and Cooper, Seth L., Volition Has No Role to Play in Determining Copyright Infringements (September 9, 2019). Perspectives from FSF Scholars, Vol. 14, No. 21, 2019. Available at SSRN: https://ssrn.com/abstract=3457897

Randolph J. May (Contact Author)

The Free State Foundation ( email )

P. O. Box 60680
Potomac, MD 20859
United States
301-299-3182 (Phone)
301-299-5007 (Fax)

HOME PAGE: http://www.freestatefoundation.org

Seth L. Cooper

The Free State Foundation ( email )

P.O. Box 60680
Potomac, MD 20859
United States
301-299-3182 (Phone)
301-299-5007 (Fax)

HOME PAGE: http://www.freestatefoundation.org

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