FSF Urges SCOTUS to Take Up Case to ‘Clarify the Law’ on Direct Infringement

The U.S. Supreme Court should “clarify the law” on direct infringement of copyrighted works, said Seth Cooper, Free State Foundation senior fellow and director-policy studies, in an analysis Wednesday. SCOTUS will consider at its Sept. 26 conference whether to take up ABKCO Music v. Sagan (docket 22-1053), a case in which a lower court “distorted the law regarding direct copyright infringement,” said Cooper. Section 106 of the Copyright Act “secures the exclusive rights of a copyright owner to authorize the copying and distribution of creative works,” he said. But the 2nd U.S. Circuit Court of Appeals “determined that a person who improperly authorizes someone else to make and distribute copies of a creative work” isn’t liable for direct infringement “if the improper authorizing person did not actually ‘press the button’ to make the copies,” he said. If left standing, the lower court's decision “would undermine the ability of copyright owners to enforce their rights in many instances,” he said. SCOTUS “should grant review and vindicate the correct understanding of direct copyright infringement,” he said.