New York Law Journal "SDNY Reaffirms ' Volitional Conduct' Element of Infringement" by Steve Kramarsky

September 19, 2016

One of the major challenges facing any practicing intellectual property lawyer is advising clients on whether a given course of conduct or proposed business model will subject them to liability for copyright infringement. It may seem (to the client) like a simple enough question, and one a lawyer should be able to answer with a simple "yes" or "no." But for the lawyer, such a determination is extremely complex. For one thing, under the modern copyright law, the concept of infringement has expanded to include a host of behaviors that may not look, at first glance, like "copying." Public performance of a sound recording, displaying an artwork without proper attribution and "circumventing" the copy-protection on digital media can all be violations of the copyright laws under the right (or wrong) factual circumstances. Defenses to infringement—most notably fair use—are similarly complex and fact specific, and the courts are constantly refining the parameters of acceptable conduct as new paradigms emerge. On top of all of that, there is potential liability for direct infringers (those who actually commit the infringement), and secondary infringers (those who knowingly aid in, profit from, or provide the means for, infringement). Copyright infringement is never simple.

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