The Supreme Court today declined to hear a case challenging a lower court's decision that the "innocent infringer" defense under 17 U.S.C. § 504(c)(2) does not apply in a case of peer-to-peer infringement where the copyright owner had affixed proper notices on physical CDs embodying the work at issue. See 17 U.S.C. § 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."). The High Court's action leaves in place the Fifth Circuit's decision in in Maverick Recordings v. Harper, one of the major record labels' cases against an individual p2p user. In Harper, the defendant, a teenage girl, argued that she qualified for the defense -- actually, a limitation on statutory damages to $200 per work -- because she was not aware that she was engaged in infringing activity. Accord BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).
Justice Samuel Alito filed a dissent to the denial of cert., questioning whether Section 402(d) was meant to apply to a digital file, as opposed to a copy made directly from a physical object like a CD. See Order at 26.