The US Court of Appeals for the Fifth Circuit affirmed the
district court's grant of summary judgment, holding that
"volitional conduct" is required to establish a claim for
direct copyright infringement under the safe harbor provision of
the Digital Millennium Copyright Act (DMCA). BWP Media USA,
Incorporated, et al. v. T & S Software Associates, Inc.,
Case No. 16-10510 (5th Cir., Mar. 27, 2017) (Southwick, J).
T & S Software, an internet service provider (ISP), hosted
an internet forum called HairTalk on which third-party users posted
various images, shared comments, asked questions and posted other
content on topics that include hair, beauty and celebrities. BWP
Media sued T & S claiming that a third-party HairTalk user
posted images that infringed BWP's copyrights. BWP argued that
during the relevant time period, T & S did not have an agent
designated to receive notices of content that should be removed, as
required to qualify for the DMCA statutory safe harbor.
