Journal Home Browse Issues Submissions About the Journal Symposium Subscribe Go back to Issues 2024 MEYER LECTURE: LOOKING FOR "THE PERSON WHO ACTUALLY PRESSES THE BUTTON": VOLITIONAL CONDUCT AND DIRECT COPYRIGHT LIABILITY 72 J. COPYRIGHT SOC'Y 34 (2025) Robert Clarida Reitler Kailas & Rosenblatt LLP Abstract Read Full Article Thirty years ago, a California district court required a copyright plaintiff to show “some element of volition or causation” as a basis for imposing direct liability on the operator of a website whose users had posted infringing content. Absent such a showing, the website operator was held not liable. This “volitional conduct” requirement has since become an indispensable part of the judicial apparatus for determining liability in cases involving websites and other automated electronic systems that are used for infringing purposes. Courts have applied the requirement in various inconsistent ways, including a 2022 Second Circuit decision, ABKCO v. Sagan, that reduced it to a bright-line test: it held that a defendant, who built the online system at issue, did not engage in the required volitional conduct and thus could not be directly liable, because he was not “the person who actually pressed the button” that caused infringing copies to be made. This article first reviews the unsuccessful petition for certiorari in ABKCO, and argues that the ABKCO “button test” dangerously oversimplifies the volitional conduct inquiry. The article next seeks to show, through a review of the most significant case law on the issue, that “volition” in this context is best understood to mean proximate cause – as Nimmer and several court opinions have posited — rather than a mental state of willing or choosing by the defendant. Like fair use, proximate cause is a highly fact-specific common-law doctrine that resists reduction to bright-line rules, and the article notes the parallels between the (often ill-defined) use of “volition” in the automated-infringement context and the use of “transformative” in fair use analysis. Against this background, the core of the article then explores the proximate causation requirement in traditional tort law, as well as the related doctrines of concurrent cause and intervening cause and draws on current New York pattern jury instructions to show how these concepts would apply in copyright infringement cases involving automated systems. The article argues that the designer or operator of such a system may be a but-for cause of downstream infringement, but the independent acts of the system’s users are typically intervening causes that break the causal chain initiated by the system-builder. Both are “volitional,” in the sense of willing or choosing to act as they do, but only the intervening cause is held liable, per traditional tort principles of causation. The article concludes with a brief discussion of the moral intuitions that historically underlie proximate cause, and the possible advantages of employing proximate cause analysis – rather than the vocabulary of “volitional conduct” – in future infringement cases involving AI, where the “person who actually presses the button” is not a person. Meyer 72(1)Download