Some people just never learn. For decades, porn purveyor Perfect 10 has been fighting a losing battle to deputize service providers to police potentially infringing uses of its works. Indeed, at this point Perfect 10 spends far more time on litigation than creation. But court after court has rejected those efforts. In fact, Perfect 10's main achievement in the courts has been to inadvertently make good copyright law. For example, its litigation led to key decisions ruling that an image search engine was fair use and confirming that rightsholders must follow DMCA Section 512's clear rules for takedown notices.

After watching Perfect 10's long losing streak, many of us lost interest in its legal antics. But we had to pay attention once again when Perfect 10, joined by its new friend the Recording Industry Association of America (RIAA), tried to use its latest appeal to undermine well-established copyright doctrines that are essential to ensuring that copyright serves, rather than impedes, innovation and expression. The case involves the posting of images on Giganews, an online service provider that offers Usenet access services. As it has in many other cases, Perfect 10 sent woefully deficient DMCA takedown notices to Giganews and then sued the company for failing to respond to them. It lost badly in district court, on all of its claims, and was ordered to pay fees. Another day, another ridiculous Perfect 10 case.

On appeal, however, we're seeing a new argument: that the Ninth Circuit should reject a key copyright doctrine called the volitional conduct rule. The rule is simple: direct liability can only attach to the party who controls the decision to copy. A party whose role is limited to providing the means by which copies are made, without itself engaging in any "volitional conduct," cannot be liable for direct infringement. You can still be held indirectly liable for infringement, but the standards for that are different, with additional safeguards that help ensure that innovators can experiment with new technologies. This is especially important for platforms and services that have substantial noninfringing uses.

Large rightsholders don't like this rule. Not surprisingly, those same rights-holders want to interpret last year's Supreme Court decision in the ABC v. Aereo case as a repudiation of the doctrine, because the Court declined to expressly adopt it.