“Volitional Conduct” Doctrine Helps DistroKid Defeat Copyright Infringement Claim–White v. DistroKid

White created “beats” and got copyright registrations for them. He orally licensed the beats to Rivers for a 50% royalty and a promise to keep booking live performances for White. Rivers incorporated the beats into her album. White alleges that Rivers stopped booking live performances and thereby abrogated the beats license.

White, with Rivers’ consent, had uploaded her album to DistroKid, which describes itself as “a service for musicians that puts your music into online stores & streaming services.” After the alleged license breach, White took down the album, but Rivers reuploaded it. White now claims that DistroKid infringed his copyrights to the beats, both directly and indirectly (the court dismissed the indirect claims last year).

Ugh, so much going wrong here. First, oral copyright licenses are a recipe for trouble. This isn’t news, but here we are again. Second, how is DistroKid supposed to sort through the ownership and license rights here? White uploaded the album, took it down, and now claims it’s infringing. DistroKid can’t diligence the paper trail because it doesn’t exist. So if there’s a he said/she said dispute between White and Rivers over the license scope or terms, how is DistroKid supposed to figure out who’s right and who’s wrong?

DistroKid defends against the direct copyright infringement claim using the volitional conduct argument. The court summarizes the doctrine (comparing the Cablevision and EMI v. MP3tunes cases):

Second Circuit case law makes clear that where a machine or system automatically undertakes actions that result in the unlawful copying of a copyrighted work, the mere ownership, construction, or supervision of the machine or system will not establish volitional conduct…

On the other hand, the Second Circuit has found that the operator of an automated system that copies copyrighted material without a request from the user may be held to have engaged in volitional conduct and thus to have violated the Copyright Act.

The court sides with DistroKid:

volitional conduct is not shown merely by alleging that a system copied, reformatted, or distributed copyrighted material, even if the system’s functions can be broken down into three separate events. White must still identify “the volitional conduct that causes the copy to be made” in order to determine “the author of an allegedly infringing instance of reproduction.” There is nothing in the amended complaint to suggest that these acts were anything other than part of an automated process: that is, to use the language of the Amended Complaint, that DistroKid “populates” a file to the various Digital Stores, as a result of a command of its customer. It would be pure speculation to conclude from the allegations that there was human involvement in the three steps identified by White. Rather, the only reasonable inference to be drawn from the complaint is that the volitional conduct was engaged in by Rivers, who “issu[ed] a command directly to a system, which automatically obeys commands and engages in no volitional conduct.” Automated actions, by themselves, do not amount to a “deliberate role” and do not change the DistroKid website from a “passive provider of a space in which infringing activities happened to occur to an active participant in the process of copyright infringement.”

White responded that “the mere making of an additional copy that was not specifically requested by the user necessarily constitutes “volitional” conduct.” The court says that this isn’t what the BMP v. Polyvore case stood for (but that case was a mess…who knows what that case stood for?).

White argued that DistroKid reformatted the album. The court responds: “the reformatting of a song file does not necessarily indicate human involvement or other volitional conduct.”

White argued that DistroKid distributed the album to other platforms, but the court says the uploader (Rivers, at this point) chose which platforms would receive it. Thus:

there is nothing to suggest that it required any human involvement other than Rivers’. Obviously, DistroKid had to initially “choose” the Digital Stores that were potential recipients of its customers’ music as well as determine the formatting requirement for each of the Digital Stores. But this initial choice is no different from the choice made by Cablevision as to which channels were going to be made available for the RS-DVR service — an act that was not deemed to be conduct which “supplie[d] the necessary element of volition” in Cartoon Network.

The court summarizes its position:

DistroKid is a platform that allows a copyright holder to transmit songs to websites such as YouTube and Spotify by having the copyright holder upload the songs onto the DistroKid platform and choose the websites that are to be populated by those songs. To be sure, DistroKid operates the system that takes the necessary steps to transmit the songs in the proper format to the platforms chosen by the user. But it would be entirely speculative to say that this process requires human involvement to the extent the process entails copying, reformatting or distribution. Nor can we say that the system reflects that DistroKid played “some ‘deliberate role’ in the alleged infringement, such that the platform morphed from a ‘passive provider of a space in which infringing activities happened to occur to an active participant in the process of copyright infringement.’”

This may all sound intuitive. However, direct copyright infringement is strict liability, so the volitional conduct provides an important “fast lane” to survive cases that otherwise look dangerous to defendants.

Case Citation: White v. DistroKid, LLC, 2025 WL 450587 (S.D.N.Y. Feb. 11, 2025)