During discovery, Plaintiffs examined Harper’s computer. The examination showed that its operating system had been reinstalled in 2005. As a result, most of the files present on the computer in 2004, when MediaSentry performed its investigation, had been overwritten. The forensic examination did show that three file-sharing programs had been installed and used on the computer, including a program known as LimeWire, which had been used after the operating system was reinstalled. It also revealed a new cache of approximately 700 recordings downloaded since the reinstallation. Fifteen of the copyrights that Plaintiffs’ second amended complaint alleged that Harper infringed came from this newly discovered cache.The plaintiffs moved for summary judgment, and minimum statutory damages of $750 per work. The district court granted the motion as to liability and enjoined her from future infringement. But the court held that there were disputed issues of fact as to whether Harper qualified as an innocent infringer, and thus gave the labels the option of settling for the $200 per work allowed if the Section 504(c)(2) defense applies. Specifically, the court rejected (and see here) the labels' argument that the defense was inapplicable here under 17 USC § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2).") because they had properly placed notices on CDs that contain the songs at issue
But the Fifth Circuit reversed, rejecting Harper's argument that her lack of legal sophistication was relevant to the applicability of the innocent infringer defense, given the presence of proper notices on CDs to which she had access:
Harper's reliance on her own understanding of copyright law—or lack thereof—is irrelevant in the context of § 402(d). The plain language of the statute shows that the infringer's knowledge or intent does not affect its application. Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense.Harper's cert. petition argues that the presence of a notice on a physical copy (e.g., a CD) should not automatically bar the innocent infringer defense where the copy was made from a digital file (which doesn't contain a notice). It frames the issue like this:
This understanding is supported by the historical structure of the copyright law. What is now § 402(d) was amended as part of the Berne Convention Implementation Act ("BCIA"), Pub. L. No. 100-568, 102 Stat. 2853 (1988). Before the Berne Convention was adopted, publishers ran the risk of placing their work into the public domain by failing to include a notice of copyright. "Under the BCIA," however, "notice is no longer required at publication." 2-7 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 7.02(C)(3) (2009). But the BCIA, in part through § 402(d), "preserves an incentive for use of the same type of copyright notice." Id. That incentive is the bar to the innocent infringer defense. Under this scheme, it would make no sense for a copyright defendant's subjective intent to erode the working of § 402(d), which gives publishers the option to trade the extra burden of providing copyright notice for absolute protection against the innocent infringer defense. Harper cannot rely on her purported legal naivety to defeat the § 402(d) bar to her innocent infringer defense.
There are two potential readings of § 402(d). Under the first, § 402(d) eliminates innocent infringement whenever the copyright holder’s published copies of its sound recording bear the § 402 notice. Under the second, § 402(d) eliminates innocent infringement only when the copy that the infringer used to infringe bears the § 402 notice. As between these two readings, the second is preferable because only notice on the copy that the infringer used to infringe tends to disprove the infringer’s innocence. Congress should not be presumed to have required courts to conclude otherwise — in this case, to conclude that notice on a CD in the record store tends to disprove the innocence of an infringer who infringed using only music files on the Internet — in § 402(d) when an alternative reading is equally consistent with the text.But this implies that the Section 402(d) limitation on the innocent infringer defense could never apply in the P2P context -- where a digital file can't contain a notice -- a step it seems to me courts would be unwilling to take.
The petition argues that there is a circuit split on this issue. The Fifth Circuit in this case and the Seventh Circuit in BMG Music v. Gonzalez, 430 F. 3d 888 (7th Cir. 1005) rejected the limits on the defense that Harper urges. But, says the petition, DC Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990), is to the contrary. In that case, the Second Circuit upheld the district court's finding of innocent infringement, based on the defendants' lack of sophistication and the fact that the infringing goods they sold in their stores lacked notices.
Harper is represented by Kiwi Camara, who represented accused peer-to-peer defendant Jammie Thomas-Rasset in her second trial. The jury awarded the labels $1.92 million, but the court later remitted the award down to $54,000. A third trial is currently set for October 4, 2010, in Minneapolis.