Direct Liability For Creating The Playback Copies (at 130)

In the pdf file below and at 130:  The district court refused to impose direct liability on the ISP, reasoning that “although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” Id. at 1370.

Is there a parallel here that could be a defense for some cases where a computer used by multiple people had illegal files on it’s hard drive and the owner of that computer was charged and convicted of the strict liability offence of possession.  There should have been proof of “some element of volition or causation” on the part of the owner.  But in almost all cases no such proof has even been made.  The courts typically just find that because it is a strict liability offence, if the files were on the computer and the defendant was the owner of that computer, they are guilty of possession without any need to prove “some element of volition or causation” of the files being there.  If some element of volition or causation is required for copyright infringement, then it should also be a required element for a possession conviction.

Both are strict liability offences.

DirectLiabilityForCreatingThePlaybackCopies-130-CartoonNetworkLP-LLLP-v-CSC-Holdings-Inc-536F-3d-121-CourtOfAppeals-2nd-Circuit2008-GoogleScholar.pdf

Download the PDF file .

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