INNOCENCE LOST

Fifth Circuit hears defense in music downloading case

You’ve probably heard the saying, “Ignorance is no defense.” But does that hold true when it comes to copyright notices — specifically those involving recorded music? It’s an increasingly important question in today’s age of digital file sharing via the Internet. The U.S. Fifth Circuit Court of Appeals provided one answer in the case of Maverick Recording Co. v. Harper.

OPENING BARS

A consortium comprising Maverick and other plaintiff recording companies investigated infringement of copyrights over the Internet. Through the investigation, they discovered that Whitney Harper used a file-sharing program to share 544 digital audio files — including a number of the plaintiffs’ copyrighted recordings — with other users of a peer-to-peer network.

Subsequently, they found that Harper had downloaded all of the files from the Internet to her computer without paying for them. She hadn’t copied any of the songs from CDs she’d legally purchased. In response, the plaintiffs brought an infringement lawsuit against Harper. In August 2008, the district court granted the plaintiffs’ motion for summary judgment on their copyright claims for 37 audio files.

DISTRICT COURT TAKES REQUESTS

The plaintiffs requested the minimum statutory damages of $750 per infringed work, as established by Section 504(c)(1) of the Copyright Act. But Harper argued that her infringement was “innocent” under Sec. 504(c)(2) of the same act. Under that section, a court can reduce statutory damages to $200 per work if the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.” Harper maintained that her acts were equivalent to listening to an Internet radio station.

The district court denied the plaintiffs’ damages request because it hadn’t determined whether Harper’s infringement was “innocent.” Instead, the court entered a judgment of $200 per infringed work.

TIME TO PAY THE PIPER

On appeal, the Fifth Circuit noted that the innocent infringer defense is limited by Sec. 402 of the Copyright Act. According to the court, with one exception that wasn’t relevant here, Sec. 402 precludes the reduction of damages based on the innocent infringer defense if a proper copyright notice “appears on the published … phonorecords” to which the defendant had access.

The plaintiffs had provided such notice on each of the published “phonorecords” from which the audio files at issue were taken. Harper argued, however, that she was “too young and naïve” to understand that copyrights on published music applied to downloaded music.

The court dismissed that argument. It held that an infringer’s knowledge or intent doesn’t affect application of the limitation. If a copyright infringement defendant’s subjective intent could override Sec. 402, the court wrote, publishers would have no incentive to go to the extra effort of providing copyright notice.

The Fifth Circuit held that the question of Harper’s intent didn’t require further litigation because the plaintiff’s notice foreclosed the availability of the innocent infringer defense. The court concluded that the plaintiffs were entitled to the requested statutory damages of $750 per infringed work.

DULY NOTED

Sec. 402 of the Copyright Act does indeed provide copyright owners with incentive to provide proper notice. That simple step could make a significant difference in the amount of damages that can be recovered from infringers.