The Various Views of Volitional Conduct

On July 15th of this year, the Copyright Office sought “further comments on the state of U.S. law recognizing and protecting ‘making available’ and ‘communication to the public’ rights for copyright holders.” The Office had solicited similar comments this past February, and a total of twenty-seven replies were filed at the time. After the Supreme Court issued its Aereo opinion in June, the Office’s July call for comments requested “commenters’ views regarding the Supreme Court’s opinion in Aereo and how that opinion may affect the scope of the rights of making available and communication to the public in the United States.”

The Copyright Office listed six suggested questions that “commenters may wish to address,” but one question in particular concerned volitional conduct:

How should courts consider the requirement of volitional conduct when assessing direct liability in the context of interactive transmissions of content over the Internet, especially in the wake of Aereo?

Twenty-eight comments have now been submitted in response, and the various views among the commenters on volitional conduct are fascinating. Recall that in Aereo, the majority made no mention of “volitional conduct” in holding that Aereo publicly performs, but the dissent thought that Aereo does not perform under its version of the volitional conduct test. The comments filed with the Copyright Office run the gamut on the continued validity of volitional conduct analysis post-Aereo, and they demonstrate fundamental disagreements over what the test is even about.

In previous posts, I’ve developed my own view of the test: I think volitional conduct simply refers to “causation,” in the tort-law sense of the word, and all courts engage in volitional conduct analysis when determining whether a defendant can be held directly liable for violating any of the exclusive rights in Section 106. It’s not enough that the defendant be the factual, but-for cause of the copying; the defendant has to be the legal cause as well. In other words, under the volitional conduct test, I think courts engage in proximate causation analysis. As recurring fact-patterns arise, certain variations of the test take shape in the case law, and what may be the test for one exclusive right in a given context doesn’t necessarily translate to another right in a different context.

In Aereo, I think the majority applied the volitional conduct test when it determined that Aereo publicly performs—a court needn’t use the magic words “volitional conduct” to engage in such analysis. Rather than sussing out a particular version of the test from the case law, the Court deduced its own: Since it knew that cable systems directly perform under the Transmit Clause, and since it knew that Aereo was functionally equivalent to a cable system, it reasoned that Aereo directly performs. The Court didn’t reject a causation-based approach to the Aereo puzzle. On the contrary, the entire purpose of the Court’s syllogism was to determine whether Aereo directly causes the performances to occur.

However, as the comments submitted to the Copyright Office show, my view of volitional conduct is not shared by everyone. Most commenters avoided the volitional conduct question entirely, though many did not. Below, I’ll look at the comments that took a position on the volitional conduct test, adding my own commentary as I go.

A group of musical works organizations, including BMI, ASCAP, NMPA, SESAC, and SGA, argues that, while the volitional conduct test has developed as to the reproduction right, there’s been no such development for the public performance right:

Despite this movement towards a volitional requirement for a finding of reproduction right direct infringement liability, courts have not applied the requirement across all rights. Specifically, courts have recognized the differences between various Section 106 exclusive rights. As noted by the Second Circuit in the Cablevision decision “the definitions that delineate the contours of the reproduction and public performance rights vary in significant ways.” ***

While the Court in Aereo acknowledged that “a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act,” the Court rejected the dissent’s view that an automatic transmission made at the request of a user should be analogized to the copy shop scenario which primed the path for the volitional analysis in the reproduction cases.

Clearly, a volitional conduct test is incompatible with a public performing right that is broadly applicable to on-demand, interactive entertainment technologies. Inventive technicians and software programmers can always engineer transmission systems to have the user initiate the transmission. Indeed, the classic public performance paradigm – the jukebox – is user initiated.

This is a narrower view of volitional conduct than my own. While I certainly agree that the version of the test applicable to the reproduction right has limited utility when the public performance right is at stake, I disagree that volitional conduct only applies to the reproduction right. Under my broad view of the test, it applies to all of the rights under Section 106. However, I think the form of the test changes with the context.

The comments submitted by the Cablevision Systems Corporation (yes, that Cablevision) reflect an understanding similar to my own:

The test that courts have applied . . . is the volitional conduct test: To be a direct infringer, the defendant or its employees must actually engage in the volitional conduct that constitutes the infringing act. It is not enough merely to supply the means that others use to infringe. ***

Like the “to the public” requirement, the volitional-conduct standard provides a sensible basis for distinguishing between on-demand content distributors and legitimate cloud-technology providers. On the one hand, a video-on-demand operator who selects a particular library of content, loads it into his video-on-demand system, and then offers to transmit that content to any subscriber willing to pay is fairly regarded as engaging in sufficient volitional conduct to render him a direct infringer. That is because the volitional steps of selecting the content and loading it into the system are fairly viewed as the initial steps in the process of “show[ing]” the work to the public. ***

By contrast, a cloud-technology provider that merely provides remote storage and transmission facilities does not “do” the transmitting when a consumer uses the service to download his own files from a remote location or stream his own files back to himself. Just as an Internet Service Provider does not “do” the transmitting when a customer uses its facilities to send an email, a remote-storage service like Dropbox does not “do” the transmitting when the customer downloads his own files.

Thus, like me, Cablevision takes a broad view of volitional conduct, and it thinks the test is used to determine whether the defendant has sufficiently caused the copying such that it can be held directly liable—regardless of which exclusive right is at issue. However, I disagree with Cablevision’s read of Aereo: I think that under the Court’s reasoning, a service like Dropbox would in fact be performing, but those performances wouldn’t be public given the prior relationship of the users to the content being transmitted. I actually prefer Cablevision’s approach, which says the identity of the sender changes, but I don’t think it’s viable under Aereo.

The Computer & Communications Industry Association (CCIA) takes a similarly broad approach to volitional conduct, arguing that the focus under the test is on whether the defendant proximately causes the copying:

The volitional act doctrine is a long-held principle that one is not liable for direct infringement without proof that one has actually done the infringing act. When a computer system or service is used to reproduce or perform a work in a way that may infringe, direct liability is reserved for parties whose direct and volitional act is sufficiently proximate to the infringement. *** The volitional act doctrine remains valid law; multiple circuits have analyzed the issue and have so held, and Aereo’s “narrow holding” has not changed this.

Although the majority’s logic leading to the conclusion that Aereo “performs ” appears to have been ad hoc and results-driven, it was nevertheless asking the right question. That is, the Court’s inquiry attempts to determine whether Aereo was the volitional actor: was it the entity doing the performing, or was it just providing the equipment by which the subscriber did the performing. This aspect of the opinion reaffirms that volitional action remains a requirement for finding direct infringement; had the Court concluded Aereo was only providing the equipment to the subscriber, it would have been at most a secondary infringer.

Complaints about the opinion being “ad hoc and results-driven” aside, I agree with the CCIA that the Court did in fact apply the volitional conduct test in Aereo and that it remains good law—regardless of which right is at issue. The entire point of the Court’s analysis as to whether Aereo performs was to determine whether Aereo’s volitional conduct was sufficient to hold it directly liable.

The Copyright Alliance, by contrast, takes a narrower view. It argues that the various tests employed under the “volitional conduct” moniker are inconsistent, and it thinks that a better approach would be to focus on substance, not form:

While the dissent would have applied a volitional conduct test similar to that applied by some lower courts, the majority opinion rejected it in favor of a more practical test. Those lower courts that have addressed “volitional conduct” have approached it inconsistently, with the risk that its adoption and application in other contexts might lead to absurd results. For example, a court might find that any degree of involvement in designing and implementing a multi-use service is volitional conduct, which would lead to the imposition of a duty to design products so they can never be used to infringe. On the other hand, a court might translate “volitional conduct” as a “robot exception ” or a “who pushed the button” test, ignoring any culpable behavior on the part of a service provider so long as it is the user who triggers the making of a copy. Neither of these outcomes is desirable. It would be more helpful for courts to focus less on legal formalities and labels and more on who is doing what to whom. This is essentially the approach taken by the majority in Aereo, and it led to the correct outcome.

I think the Aereo dissent’s focus on one branch of the volitional conduct test affirms the Alliance’s position. By fixating on the label, the dissent lost sight of the substantive differences between the exclusive rights and the various contexts under which questions of direct liability arise. Properly understood, however, I think volitional conduct analysis is context- and right-specific, and I think the Aereo majority implicitly acknowledged this when it analyzed substance instead of form.

The DISH Network Corporation thinks that the Court in Aereo merely rejected the volitional conduct test for cable system lookalikes, though it thinks the test otherwise remains good law:

In the Aereo case, decided this past term, the Supreme Court had occasion to consider the volitional conduct requirement. Aereo, the proprietor of an Internet television service, attempted to interpose that requirement between itself and the television networks’ claim of direct infringement of 17 U.S.C. § 106(4)’s public performance right. The majority in Aereo rebuffed Aereo’s argument, over a dissent that would have applied it to absolve Aereo of liability. Does the Aereo majority’s opinion undermine the volitional conduct requirement generally? Hardly. Properly understood, Aereo is simply a rejection of the volitional conduct requirement for an exceedingly narrow class of conduct, namely “the activities of cable systems.”

As mentioned already, I think the Court did not reject volitional conduct; it instead gave us one version of the test to use when a defendant’s service is functionally equivalent to a cable system.

Professor Jane C. Ginsburg (Justice Ginsburg’s daughter) suggests that the Aereo majority rejected a narrow view of volitional conduct, one which would only consider Aereo’s actions vis-à-vis any particular content:

The Aereo majority’s silence on the matter of “volition” in the face of the dissenters’ emphatic interpolation of a “volition” predicate might suggest that the majority considers “volition” irrelevant to the assessment of whether the defendant has publicly performed a work. The majority’s analysis of whether Aereo “perform[s] at all” distinguishes between the mere provision of equipment and “engag[ing] in activities like Aereo’s.” *** According to Aereo, a service “performs” copyrighted works, rather than simply supplying equipment, when it “uses its own equipment, housed in a centralized warehouse, outside of its users’ homes,” to transmit performances of works to viewers, even when that equipment “may . . . emulate equipment a viewer could use at home.” The majority therefore appears to stress the service’s active engagement in the transmission, rather than any specific “volition” with respect to the particular content transmitted, or with respect to the decision to commence any particular transmission. The end user may be choosing what copyrighted work to view or hear, and when and where to receive it, but the entity that offers the user those choices is “performing” the works, even when it merely responds automatically to the end-user’s choice.

Instead, Ginsburg thinks the Court took a broader view, determining that Aereo performs by looking at its conduct in creating and offering its service to the public. I agree with Ginsburg that the Court took this broader view, but under my formulation of the test, the Court’s analysis was of Aereo’s volitional conduct.

The Internet Association stresses that the Aereo Court left the volitional conduct case law intact, instead finding that the test need not be applied with cable system lookalikes:

The Aereo ruling does not alter Cablevision’s “user direction” standard for determining whether a system provider or the user is the one who “makes” the copy when assessing claims for direct copyright infringement. In Aereo, the Court avoided the issue entirely, deeming a volitional analysis “not critical” when a platform resembles a cable system. This indicates that the Court does not intend to disturb the line of precedent that has explored how to determine volition when technologies facilitate copying or disseminating protected works.

I think this misreads Aereo. The Court did not say that analysis of Aereo’s volitional conduct was “not critical” to determining whether it performs. Instead, it said that in other scenarios, “a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act.” But the Court did not need to independently weigh those factors with Aereo because Aereo’s functional equivalence to a cable system meant that it directly performs.

The Internet Commerce Coalition (ICC) reads the Aereo opinion much the same as I do:

As noted above, questions of volitional conduct and direct liability were limited to the facts of this case and to senders and receivers of cable retransmissions. That Aereo’s business model was directly analogous to that of a cable operator was absolutely central to the Court’s decision. The idea that the opinion would excuse establishing a volitional act is untenable. Indeed, the Court expressly stated that “In other cases involving different kinds of services or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act.” ***

Thus, it is clear that the Court’s decision must not be read as altering the requirements to establish copyright infringement, such as volitional conduct, nor as a decision broadly applicable across the increasingly diverse spectrum of digital content delivery technologies. Furthermore, the facts of Aereo plainly in no way support this sort of strained reading. It can in no way be said that Aereo’s conduct was non-volitional. Aereo went to great lengths to establish a complex network of hardware capable of providing subscribers with the equivalent of cable television. As evidenced by Aereo’s conduct and the promotion of its services, it deliberately sought to assume the role of a cable provider without obtaining the permissions required under the Copyright Act.

I agree with the ICC in that I think the Court found that Aereo performs precisely because its volitional conduct was comparable to a cable system. The syllogism employed by the Court was its way of determining whether Aereo’s conduct was sufficiently close such that it caused the performances to occur. But, as the ICC points out, that analysis wouldn’t necessarily apply to other services that aren’t functionally equivalent to a cable system.

The joint comments by the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) take a very narrow tack, and they argue that the volitional conduct test doesn’t even exist:

To the extent that this question suggests that a “volitional conduct” requirement for direct liability exists in certain circumstances under U.S. copyright law, we respectfully disagree with such a premise. Under U.S. copyright law as properly interpreted, proof of “volitional conduct” is not required to establish a defendant’s liability for direct infringement in the context of interactive transmissions of content over the Internet.

Their opposition to the existence of the test appears to stem from how that test has developed doctrinally:

Leading copyright scholars also have questioned or disputed the existence of a volitional conduct requirement. David Nimmer’s treatise, for instance, stated its “respectful[] disagree[ment]” with the Second Circuit’s “treatment of volitional conduct,” 4 Nimmer, supra , § 13.08[C], and Professor Paul Goldstein emphasized that “American copyright law has never required that liability for direct infringement be imposed only on the individual who presses the ‘record’ button,” 2 Paul Goldstein, Goldstein on Copyright (“Goldstein”) § 7.0.2, at 7:8.1 (3d ed. 2014 Supp.).

I agree with the MPAA and the RIAA, as well as with treatise-authors Nimmer and Goldstein, that the development of the volitional conduct test has been disconcerting—especially with the “who pushes the button” variation of the test found in the reproduction right case law. However, if volitional conduct is understood simply to be causation analysis, then I think the test is very much the law when determining direct liability.

Comments submitted jointly by Public Knowledge (PK) and the Electronic Frontier Foundation (EFF) take the position that Aereo should be read narrowly:

Not only was Aereo’s overall holding based upon the unique placement of the service vis-à-vis a perceived exchange between the Court and Congress; the findings on volition are also explicitly tied to inferences about Congressional intent specific to cable systems. In particular, the Court takes its prior findings from Fortnightly and Teleprompter and then assumes, since Congress intended to overturn the result of those cases, that Congress intended (and properly acted to ensure) that all sufficiently similar systems reach the same result — regardless of whether the text of the Copyright Act actually does so.

Looking past their disdain for the Court’s holding, I think PK and the EFF are correct that Aereo left open some questions of how the volitional conduct test would apply in other cases. However, I think the Court’s reading of the Transmit Clause would be controlling in several other contexts, and its analysis of the distinction between public and private carries over to the public distribution and public display rights. I don’t think Aereo is as narrow as PK and the EFF would like it to be.

Last, but certainly not least, we have the comments from attorney and adjunct professor Rick Sanders, who operates the IP Breakdown blog along with his law partner, Tara Aaron. Sanders acknowledges the doctrinal discord with the volitional conduct test:

To answer this question, we must first address what courts mean by “volitional conduct,” which is not at all clear. The only thing that is clear is that volitional conduct relates to direct copyright infringement. Beyond that, it is not even clear whether “volitional conduct” is a kind of intent element, as the leading copyright treatise believes, see 4 Melville and David Nimmer, NIMMER ON COPYRIGHT § 13.08[C] or a kind of causation element, as the courts that developed the doctrine believe . . . . It is probably most accurate to say that volitional conduct partakes of causation and intent, but intent is always with respect to an intent to carry out a certain conduct, not with respect to whether the actor understands the infringing consequences the conduct—much like the “intent” element of the common-law tort of trespass to land.

According to Sanders, the Aereo majority shed no light on the volitional conduct test:

For its part, the majority does not mention volitional conduct, or even causation or intent. Indeed, the majority makes no attempt to place its holding within any theoretical framework of copyright law.

I disagree with Sanders that the Court in Aereo failed to discuss causation. In my opinion, the entire section on whether Aereo performs, which looked at how Aereo is functionally equivalent to a cable system, was causation analysis. It’s precisely because Aereo functions equivalently to a cable system that the Court was able to deduce that Aereo performs. That was the entire point of the Court’s syllogism.

All-in-all, the various views on volitional conduct presented in the comments submitted to the Copyright Office demonstrate that there is little consensus on the precise contours of the test. The fact that the Aereo majority chose not to use the phrase “volitional conduct” has only added to the controversy. Only time will tell which view of volitional conduct, whether broad or narrow or somewhere in between, will develop as the dominate statement of the test. And, by the way, if you’re looking for the strangest comments submitted to the Office, I’d say that award goes to Carrie Devorah.

Follow me on Twitter: @devlinhartline

© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

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