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  • Against Search Engine Volition

    The concept of volition in copyright arose as a way to insulate Internet Access Providers and Bulletin Board Systems from liability for direct infringement prior to the 1998 “safe harbor” provisions of the Digital Millennium Copyright Act. The volition requirement purported to be a technical test, finding that volition was lacking where the technology, like a copy machine, responded “automatically” to a “third party request.” However, the metaphor of the copy machine and the application of volition in recent cases suggest that the requirement is not wholly technical. Instead, courts use the technical prongs of volition to approximate when the copying is sufficiently close to the infringing conduct that the machine owner himself can be said to trespass on the exclusive domain of the copyright owner. The problem is this: despite the clear distance between search engines and uploaders of infringing copies, the “third party request” element of the volition test would presently prevent courts from finding that search engines lack volition. This Comment argues that the test should be subtly retooled to accommodate the search engine model.

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