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Volitional Conduct: an Element of Copyright Infringement

The Ninth Circuit Court of Appeals recently held in Perfect 10 v. Giganews, No 15-5550 (Jan 23, 2017), that an alleged copyright infringer can only be found directly liable if its “volitional conduct” actually causes the infringing activity to happen. Notably, the Court rejected Appellant’s argument that the Supreme Court’s ruling in American Broadcasting v. Aereo, Inc. removed this “volitional conduct” requirement. Appellant Perfect 10, Inc. owns copyrights to several images. Appellee Giganews, Inc. owns and operates several Usenet servers and provides subscribers to user-stored content to other Usenet providers. Perfect 10’s images have been distributed by users over Giganews’s servers, and Perfect 10 sued Giganews for direct and indirect copyright infringement claims. The district court granted Giganews’s motions for summary judgment as to the direct and indirect copyright infringement claims. The Court reviewed the grant of summary judgment de novo. To show a prima facie case of direct copyright…

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