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Whether “volitional conduct” is required to establish a claim for direct copyright infringement

T&S hosts a website that includes a public forum called “HairTalk.” Users of the forum may post content, share comments, ask questions, and engage in online interactions with other users on a range of topics including hair, beauty, and celebrities. Use of HairTalk is governed by terms of service providing that “any photo containing… celebrities… or any copyrighted image (unless you own the copyright) is not permitted.” Every time someone logs on to HairTalk, the user must agree to these terms.

Also, each page of the website includes a “contact us” link, which allows anyone to contact the website to report objectionable content. During the relevant time period, T&S did not have an agent designated to receive notices of content that should be removed as required to qualify for the statutory safe harbor of the Digital Millennium Copyright Act (“DMCA”).

BWP Media USA and National Photo Group are registered owners of various celebrity photographs. Three photographs owned by BWP were posted by third-party users on HairTalk without BWP’s permission. BWP sued for copyright infringement. The suit claimed that T&S was liable for its users’ infringement because it failed to designate a registered agent under Section 512. T&S learned of the photographs upon commencement of suit and promptly removed them. The district court granted summary judgment in favor of T&S as to both direct and secondary infringement. BWP appeals the district court’s judgment only as to T&S’s direct-infringement liability.

T&S hosts the forum on which infringing content was posted, but its connection to the infringement ends there. The users posted the infringing content. T&S did not provide them access to that content. Holding T&S directly liable thus raises the same concern as it did in Netcom: “it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet.” T&S and the infringing content are not linked by volitional conduct. It cannot be said that T&S’s conduct “cause[d] in some meaningful way an infringement.”

T&S does not qualify for Section 512(c)’s safe harbor, as it never designated an agent. The court adopted the volitional-conduct requirement in direct-copyright-infringement cases. BWP did not contend that T&S did, in fact, engage in such conduct. Thus, the district court properly granted summary judgment in favor of T&S. The appeal court affirmed.