Direct Copyright Infringement in Cyberspace

U of Akron Legal Studies Research Paper No. 07-01


Posted: 4 Jan 2007

See all articles by Jay Dratler

Jay Dratler

University of Akron - School of Law


So far, most copyright litigation in cyberspace has involved secondary liability (i.e., vicarious liability or contributory infringement, including the inducement liability newly announced in Grokster). Yet direct liability is far from dead. The well-established rule of MAI Systems Corp. makes any transient copy in RAM an infringing copy unless authorized, and such "copies" appear in innumerable ways and forms in the course of the Web's normal operation. By itself, transmitting digital files is unlikely to violate the exclusive distribution right, but their use may infringe the copyright owner's other exclusive rights under Section 106. The rights' abstract expression promises perpetual copyright litigation as the Web's technology and business models evolve.

Emerging theories of direct liability offer little escape from this economically inefficient future. The "server" (rather than "incorporation") test may rationalize the reproduction, public-display and public-performance rights as applied to linking and framing. Yet it only raises further questions about the derivative-work right. The "volitional action" test has scant precedent to support it. Even if quickly accepted, these emerging theories create uncertainty for such vital uses as search-engine excerpting, image thumbnails, and multimedia applications yet to be devised.

An "implied license" or "social contract" approach offers a more sensible and efficient reconciliation of copyright with the Web's evolution. If a use (1) has become widespread, (2) is widely known or publicized, and (3) has an effective technology to prevent it by "opting out," then the use is non-infringing on the theory that the copyright owner impliedly authorized it by not opting out. A district court recently applied this approach in Field v. Google, Inc., rejecting challenges to Google's well-established search technology. If incorporated in new legislation, this approach might rapidly rationalize copyright for the Web, allowing engineers and business people, not copyright lawyers, to control the Web's evolution, while preserving copyright owners' financial incentives and creative control.

Keywords: copyright, infringment, direct liability, exclusive rights, Web, cyberspace, perpetual litigation, Mai, server test, incorporation test, implied license, social contract, volitional infringement

JEL Classification: K29, K49, L82, L86, O31, O32, O33, O34, O38

Suggested Citation

Dratler, Jay, Direct Copyright Infringement in Cyberspace. U of Akron Legal Studies Research Paper No. 07-01, Jay Dratler, CYBERLAW: INTELLECTUAL PROPERTY IN THE DIGITAL MILLENNIUM, Law Journal Press, 2000, Available at SSRN:

Jay Dratler (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States

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