Volitional Conduct and Algorithms

In the coming years, the current wave of generative AI copyright lawsuits will impact, shape, and redefine many important copyright doctrines, from intermediate copying to fair use. One such doctrine that warrants closer scrutiny is copyright’s volitional conduct requirement, which asks whether a defendant’s conduct is sufficiently tied to an infringing act so as to constitute its proximate cause. This panel will dive deeply into volitional conduct in copyright, examining its origins in a 1995 Northern District of California decision; tracing its subsequent development in the case law; and investigating ways in which it has been raised in current generative AI cases.