IP Law Daily, COPYRIGHT—S.D.N.Y.: Of its own volition? DistroKid will not face direct infringement charges, (Feb 12, 2025)

By Matthew Hersh, J.D.

The service passively distributed music that was uploaded by others.

A website that automatically distributes uploaded music to other music platforms such as Spotify or iTunes could not be liable for direct copyright infringement because individual users chose the music to upload to it and because the platform’s subsequent copying and distribution of music was done automatically, the federal court for Manhattan has held. The court’s decision, which rejected a songwriter’s claim that the service infringed his rights by distributing his music without permission, came within months after the same court found the service could not be indirectly liable for the infringing actions of its users (White v. DistroKid, LLC, No. 1:22-cv-02205-VEC-GWG (S.D.N.Y. Feb. 11, 2025)).

The opinion arises out of a failed collaboration between two New York City area musicians, Brian White and Eunice Rivers. White, who goes by the stage name Amir Beats, created a series of beat tracks that he eventually licensed to Rivers on the condition that she book live performances for him and pay him royalties for her own uses. He eventually came to believe, however, that his former collaborator was using the works at live performances that she did not tell him about. Moreover, White came to believe, Rivers also profited from his works by uploading them to a music distribution service known as DistroKid.

White sued Rivers as well as DistroKid for copyright infringement. In 2024, the court dismissed contributory and vicarious copyright infringement claims against DistroKid, finding that there were no meaningful allegations that DistroKid collaborated with Rivers nor that DistroKid users were drawn to the service by virtue of the infringing content. However, the court reserved ruling on whether DistroKid could be directly liable to White for infringement.

DistroKid then filed a motion for judgment on the pleadings over the direct infringement question, leading to this opinion.

Volition. The court dismissed the direct infringement claim. To be liable for direct infringement, the court noted, a defendant must have engaged in what case law calls “volitional conduct” that “causes the copying or distribution.” Crucially, the court emphasized, engaging in volitional conduct “requires some active steps, as opposed to mere passive action.” The songwriter argued that DistroKid engaged in just these “active” steps because it made additional copies of songs that were uploaded, changed the format of those works, and then distributed the works to music platforms such as Spotify, iTunes, and Amazon. But none of these actions were enough to constitute volitional conduct, the court found.

The problem for the songwriter, the court reasoned, was that nothing in his complaint suggested that DistroKid’s actions were anything other than part of an automated process. “There is nothing in the amended complaint to suggest that these acts were anything other than part of an automated process,” the court observed. To the contrary, the court found, “the only reasonable inference to be drawn from the complaint is that the volitional conduct was engaged in by Rivers, who issued a command directly to a system, which automatically obeys commands and engages in no volitional conduct.” Thus, there was no basis to find 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.’”

The Case is No. 1:22-cv-02205-VEC-GWG.

Judge: Gorenstein, G.

Attorneys: Andrew Grimm (Digital Justice Foundation Inc.) for Brian K. White. Jenna L. Harris (Ritholz Levy Fields LLP) for DistroKid, LLC.

Companies: DistroKid, LLC

Cases: Copyright TechnologyInternet NewYorkNews GCNNews