Tuesday, September 21, 2010

Supreme Court requests response on 'innocent infringer' cert. petition

Good news for Whitney Harper and other opponents of the record labels' suits against individual peer-to-peer users: the Supreme Court has asked the record label plaintiffs to file a response to Harper's cert. petition that sought review of the Fifth Circuit's decision that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). While the Court's request is far from a guarantee that it will take the case, it only takes such action in a small percentage of cases, and it is an indication that the justices are at least intrigued by the issues presented and are seriously considering granting cert. As the Blog of Legal Times, which first reported the decision, stated:
The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry.


  1. Perhaps I am mistaken, but it is my understanding that respondents are not required to file a response to a petition for cert. I have no data as to how many petitions for cert do not have a response filed (the only one instance I recall was Bonito v. Thundercraft). Might you have any such data?

    Given the purported circuit split (which I remain far from convinced is actually a split under the circumstances of the DC Comics case since it involved default plaintiffs), I personally would be surprised if cert is granted in this lawsuit.

  2. @ anonymous 7:48
    There is also a textual argument in the cert petition.

    One of the more convincing comparisons between Harper and DC Comics is that, in DC Comics a "lack of business sophistication" on the part of adult business owners who are engaged in the commerce of copyrighted goods were allowed to plead innocent infringement. When the circuit refused to allow Harper the same defense, does that mean that a minor is held to a higher standard than an adult? A person unfamiliar with copyright in a non-commercial capacity is held to a higher standard than someone in the business of selling copyrighted goods? Is a lack of business sophistication a better excuse than a lack of technological sophistication? Or even copyright sophistication?

    Also, there is a fantastic amicus from cyberprofs that likely helped the cause.

  3. Given the circumstances of this case and the full decision rendered by the District Court, clearly this case was appealled by the defendant for reasons other than the ability to interpose an innocent infringement defense. Same goes for the cert. petition.

    The real issue that the defendant's counsel is attempting to insert in the case is once again in another venue a challenge to the constitutionality of statutory damages. This much is clear from the brief discussion in the Fifth Circuit opinion regarding the defendant's challenge before the district court.

  4. Isn't the issue what was intended by "had access" in Sec. 402(d)? Harper seems to be arguing the copyright notice has to be on the particular phonorecord that was copied, but that seems to read 402(d) too narrowly. Harper clearly "had access" to phonorecords that contained the notice. Placing the burden on the copyright owner in this context seems unreasonable; how is Maverick Records supposed to affix notice to illegal copies of its songs on a P2P network?


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