Law360 recently published an article about the Fifth Circuit case of BWP Media USA, Inc. v. T&S Software Associates, Inc. The issue in BWP Media was whether “volitional conduct” is required for direct copyright infringement. Defendant T&S Software Associates hosted an internet forum in which users posted images that infringed copyrights owned by Plaintiffs BWP Media USA and National Photo Group. The plaintiff sued T&S for direct and secondary copyright infringement, but the trial court granted summary judgment for T&S. The Fifth Circuit affirmed, reasoning that there must be some volitional conduct on the part of T&S Associates for it to liable for copyright infringement. In doing so, the Fifth Circuit rejected BWP Media’s argument that volitional conduct is no longer required under the U.S. Supreme Court’s decision in American Broadcasting Cos. v. Aereo, 134 S. Ct. 2498 (2014).
BWP Media filed its petition for writ of certiorari in July.