Innocent Infringers

I've been working through a laundry list of copyright cases from the past year that I haven't had a chance to dig into yet.  Today's choice was Maverick v. Harper and the "innocent infringer" defense. 17 U.S.C. 504(c)(2) gives courts discretion to reduce an award of statutory damages where "the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright..."  Section 402(d) bars the defense in situations where notice "appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access..."

In the case, Harper asserted that she thought posting files to a shared folder on a p2p network was tantamount to listening to music on an internet radio station.  For a high-schooler who presumably grew up a "digital native", this seems entirely reasonable.  In any event, the end of the 5th Circuit's brief opinion states that "Harper cannot rely on her purported legal naivety to defeat the § 402(d) bar to her innocent infringer defense."  Of course, there is no mens rea element to copyright infringement, as the court reminds us in a footnote, and, sticking with the Latin, ignorantia juris non excusat.  There clearly was infringement here regardless of one's feelings of the underlying policy outcome.

When the opinion was first released and attacked, I dismissed it as another skirmish in the p2p wars.  The facts state that Harper obtained all the tracks online and not from ripping CD's she legally purchased.  Later, we are told that "[t]he district court acknowledged that Plaintiffs provided proper notice on each of the published phonorecords from which the audio files were taken.  It found, however, that regardless of Harper’s access to the published phonorecords, such access would not necessarily put her on notice of the copyrights: 'a question remains as to whether Defendant knew the warnings on compact discs were applicable in this [file-sharing network] setting.'"  In other words, opportunity to access does not equal notice and we shouldn't expect a minor to a) read and understand the meaning of copyright notices and b) realize they probably apply to other unrelated works regardless of the medium, so let's have a trial and duke it out.  To begin with, we're not even sure who originally ripped the CD's and uploaded them.  It seems highly unlikely given the number of songs in this case, but what about a scenario where one infringed song was originally leaked online by an insider?  Of course, the policy behind the innocent infringer defense would be completely subverted by an individual claiming that since they never owned or had access to a physical copy that they should automatically be deemed an innocent infringer.  Still, I was hoping for a better rationale.  Here's what we got:

"The [District] court discounted the [plaintiff's] argument 'that one need only have access to some CD and see that the recording is subject to copyright' for § 402(d) to bar the innocent infringer defense, because knowledge that some CDs are copyrighted does 'little to establish that, as a matter of law . . . an individual knew that she was accessing copyright material from an entity that did not have permission to distribute such material.'  In her brief opposing summary judgment and brief on appeal, and at oral argument, rather than contest the fact of “access,” Harper contended only that she was too young and naive to understand that the copyrights on published music applied to downloaded music."  As stated above, this didn't cut it.


The District Court's rationale makes sense logically and factually.  It is unfortunate that, in the Fifth Circuit's view, Harper's deficient legal strategy made this a slam dunk for the plaintiffs.  The court goes on to discuss the oddity that notice is no longer required under Berne yet it provides an incentive for publishers so they can assert the § 402(d) bar and win, so long as the defendant does not contest their (lack of) access to the work.  This brings us back to what was so confusing earlier.  What was there to contest anyway?  The facts are clear.  "Subsequent discovery indicated that Harper had downloaded all of the files from the Internet to the computer without paying for them, and that she had not copied, or 'ripped,' any of the songs from compact discs that she had bought legally."

I just downloaded the petition for cert. and imagine that the arguments are the same.  Last month, the Supreme Court asked the plaintiffs to respond to the petition for cert., despite having waived their right to do so.  Perhaps the Fifth Circuit's questionable analysis will help make the Supreme Court's ultimate decision to grant certiorari an easier one.  Although the Fifth Circuit found that the constitutional issues were not properly addressed in the District Court, perhaps the Supreme Court will find a way to address them.  We'll see.  The Court requested the response on or before October 15, 2010 (tomorrow).

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