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In Usenet Suit, 9th Cir. Defends Volitional Conduct Rule in Copyright Claims

By Casey C. Sullivan, Esq. | Last updated on

The Ninth Circuit hung fast to its volitional conduct rule in copyright claims last week, while making it a bit harder for copyright holders to go after online service providers for copyright infringement. In a dispute over pornography posted on Usenet (yes, apparently Usenet still exists), the Ninth reaffirmed that plaintiffs must show "volitional conduct" by tech services accused of infringing their copyrights. Simply allowing users to exchange infringing works isn't enough.

The Supreme Court's 2014 Aereo ruling, which found a copyright violation when a company rebroadcast TV programs over the internet, doesn't change the Ninth's long-standing rule, the court explained.

More Like Abusenet, Amiright?

Usenet, for those who aren't familiar, is a collection of newsgroups where content is accessed and distributed through Usenet servers. Known as the "poor man's ARPANET," Usenet the technology has been around since 1980, with Usenet operating as sort of alternative World Wide Web, long before the web became a thing.

The Usenet dispute at issue here involved the illegal sharing of copyrighted pornography over Usenet servers. Perfect 10 owns the copyrights to thousands of images of nude women and has become a major influence in copyright litigation. (See, e.g., Perfect 10 v. Amazon, Perfect 10 v. Visa, or Perfect 10 v. CCBill, for cases decided by the Ninth Circuit -- in 2007 alone.)

Giganews offers Usenet access, through which subscribers can access a range of content -- including pictures users might share, including Perfect 10's. Perfect 10 sued Giganews, alleging both direct and indirect infringement of its copyrights.

In 2015, a district court rejected Perfect 10's claim, finding that it couldn't establish a prima facie case for direct infringement, since Giganews had not engaged in any "volitional conduct." The Ninth agreed. Giganews's passive storage of user materials didn't count as such. Without materially contributing to or inducing the copyright infringement, Giganews couldn't be found liable.

No Conflict With Aereo

The decision, the Ninth said, is fully in line with the Supreme Court's 2014 ruling in American Broadcasting Companies v. Aereo. There, the Supreme Court found that Aereo, which streamed broadcast TV to subscribers on the internet, was liable for copyright infringement, since in its rebroadcasting, it "performs petitioners' works 'publicly.'"

In Justice Scalia's dissent, the court notes, the justice seemed to endorse the Ninth Circuit's volitional conduct requirement, saying it was "fully consistent" with Supreme Court precedent. But the Aereo majority itself, the Ninth explained, did not touch on volitional conduct. And the Ninth wasn't about to read Aereo as undoing this long-standing rule by implication alone.

Further, the Ninth explained, Aereo can be reconciled with the volitional conduct rule. "Aereo was not just an equipment supplier" the Supreme Court wrote, but performed the works it shares. That recognizes the distinction between active and passive participation that the volitional conduct rule is based around, the Ninth said.

The Ninth went on to reject Perfect 10's indirect infringement claims and affirmed the district court's award of fees and costs to the defendants -- a total of more than $5 million in attorney's fees and over $400,000 in costs.

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