Volition Has No Role to Play in Determining Copyright Infringements
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.
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