Some people just never learn. For decades, porn purveyor Perfect 10 has been fighting a losing battle to deputize service providers to police potentially infringing uses of its works. Indeed, at this point Perfect 10 spends far more time on litigation than creation. But court after court has rejected those efforts. In fact, Perfect 10's main achievement in the courts has been to inadvertently make good copyright law. For example, its litigation led to key decisions ruling that an image search engine was fair use and confirming that rightsholders must follow DMCA Section 512's clear rules for takedown notices.

After watching Perfect 10's long losing streak, many of us lost interest in its legal antics. But we had to pay attention once again when Perfect 10, joined by its new friend the Recording Industry Association of America (RIAA), tried to use its latest appeal to undermine well-established copyright doctrines that are essential to ensuring that copyright serves, rather than impedes, innovation and expression. The case involves the posting of images on Giganews, an online service provider that offers Usenet access services. As it has in many other cases, Perfect 10 sent woefully deficient DMCA takedown notices to Giganews and then sued the company for failing to respond to them. It lost badly in district court, on all of its claims, and was ordered to pay fees. Another day, another ridiculous Perfect 10 case.

On appeal, however, we're seeing a new argument: that the Ninth Circuit should reject a key copyright doctrine called the volitional conduct rule. The rule is simple: direct liability can only attach to the party who controls the decision to copy. A party whose role is limited to providing the means by which copies are made, without itself engaging in any "volitional conduct," cannot be liable for direct infringement. You can still be held indirectly liable for infringement, but the standards for that are different, with additional safeguards that help ensure that innovators can experiment with new technologies. This is especially important for platforms and services that have substantial noninfringing uses.

Large rightsholders don't like this rule. Not surprisingly, those same rights-holders want to interpret last year's Supreme Court decision in the ABC v. Aereo case as a repudiation of the doctrine, because the Court declined to expressly adopt it.


As we explain in an amicus brief filed today (joined by Public Knowledge and three library associations, and with the excellent assistance of Farella Braun and Martel), the Court's majority opinion in Aereo didn't touch on the doctrine at all. The only opinion to address it was a dissent by Justice Scalia, who provided a thorough exposition of the “volitional conduct” requirement, describing it as a “profoundly important rule,” with which Supreme Court cases were "fully consistent." As Justice Scalia put it: “[b]ecause the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.” If the majority had wished to reject the doctrine, if could have done so (and responded to Justice Scalia). It did not. Indeed, the Court clearly recognized that the distinction between active and passive participation remains a central part of the analysis of direct infringement. 

We are confident that the Ninth Circuit will once again reject Perfect 10's claims. But cases like this are why we have to be vigilant against efforts to turn ordinary copyright cases into vehicles for rewriting copyright law and policy. Turning back the clock and stripping service providers, innovators, and users of the legal clarity offered by the volitional conduct doctrine and other settled copyright rules would be catastrophic for free speech online. It would effectively give rightsholders a veto right over innovation. Service providers and other innovators would be hard-pressed to provide and develop robust platforms, services and technologies if, as is often the case in the digital age, their use might somehow implicate copyright. That won't be good for anyone—including most authors, musicians, gamemakers, filmmakers, videographers and other creative people. We'll keep pushing for sensible rules and legal certainty -- and so should our courts and legislatures.

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