Thursday, May 27, 2010

Peer-to-Peer defendant seeks Supreme Court review of 'innocent infringer' ruling

A defendant in one of the record labels' suits against individual peer-to-peer infringers is asking the Supreme Court to review a ruling that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). The case involves Whitney Harper, who was 16 back in 2004, when labels' investigators detected her "sharing" 544 files. As the Fifth Circuit later described:
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.[2] Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense.

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.
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:
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.


  1. I disagree on your section 402 interpretation stating that there is no way to add the notice to a digital file. Subsection C states that the notice needs to be on the "...container, in such manner and location as to give reasonable notice of the claim of copyright."

    With a digital file why could the notice not be in the sound recording itself, or in the meta data? The file itself is a container that includes the sound recording and other relevant data like file type and often author.

    When media goes digital, producers should not be allowed to just ignore notice requirements because the technology moved forward.

  2. @Brian Rowe:

    Under Section 402, the notice "may be placed on publicly distributed phonorecords of the sound recording." Section 101 defines "phonorecords" as follows: "'Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'phonorecords' includes the material object in which the sounds are first fixed."

    First (and I haven't researched this), I'm not sure whether a digital file like an .mp3 qualifies as a "material object" under the definition of phonorecord. If it does not, then the Section 402 notice requirement can't apply. But if a digital file is a "material object," I still don't see how a "notice" can be affixed. Section 402(b) lists the elements that a notice must include. They are clearly things that must be written (e.g., "the symbol P (the letter P in a circle))". I don't know how such written words could appear on a file that is made to be perceived only aurally, not visually.

    The interesting question is how the notice provision would apply if the song was released only in digital file form, i.e., not on a CD. How would one affix the notice in that case?

  3. Re "material object", Microsoft v. AT&T (S.Ct. 2007) may shed some light on the question.

    While that case involved a question of patent law, and while the court did recognize that a copy of software on physical media did comport with the term "component" as used in the relevant statute, once separated from the media the software was deemed to no longer be embraced within the term. This suggests to me it would be unlikely that a digital file by itself separated from the original media would be deemed a "material object", even though that original file from the original media is now embodied on or in other physical media.

  4. I think this is a great example how we are at the end of the rope in shoehorning old business models into new technology using the law. I think that the notice requirement of 402 is another of the myriad of victims to technology improvement. The old business models don’t work anymore. Cant pass go, cant collect $200. How would one determine if the distribution of a file infringes on someone else’s copyright? We could:
    1. Require copyright notice in the MP3 file or audio container.
    2. Turn DMCA around and require ISPs, software providers or web sites to actively filter files transmitted.
    3. Make a government clearing house for audio fingerprints for copyright reason … oh and a clearing house for ever more complicated permitted and fair use patterns … and well you get the point.
    4. Give up on the little guy and require ALL of music to be managed by the RIAA, basically turn it into a government office.
    But…I am a little guy, I make music and I don’t see a world with options 1,2,3 or 4 ever being feasible for me without a central authority for all of this. Anything approaching usability also gives away my privacy: what am I listening to, who am I sending to etc.
    I think this is a good change. Why? In the days of audio on Bakelite, wax etc the middle man was necessary and added value, the equipment needed to produce audio recordings was out of reach for almost everyone. This was true throughout the analog era. Only in the digital era did the copying of audio no longer meaningfully impact the quality. Now we have an industry that is trying to embrace the Microsoft model: fixed costs and variable revenue. So sell as many copies of a single work without increasing costs. I don’t think this should work. It leads to large players providing lousy service by selling identical items to the masses. For example its arguable if Windows is a good OS or not, however the support you will get as a customer is pathetic. Even the agreement under which you operate the OS absolves Microsoft of any liability even if they sold you something that plain doesn’t work, deletes your data etc. I think behavior like this is to be expected if you allow an industry to run unchallenged for too long.
    Ps. Nothing against Microsoft, just used them as a well known company. They are not worse than the rest.

  5. i post this comment upon first reading of your post but apparently my comment was not approved. i resubmit in hopes that the problem was oversight rather than suppression of a view different from yours:

    Whitney Harper has filed her petition for certiorari to the United States Supreme Court to review the Fifth Circuit’s judgment eliminating the innocent infringer defense for music downloaders. Under the ruling there are no innocent downloaders. All are subject to legal penalty and injunction without any need for jury trial.

    here is the petition by Whitney Harper’s advocate, K. A. D. (Kiwi) Camara, HLS’02.

    i have just read and commented on ben sheffner’s effort to minimize the significance of the case, and am about to twitter.

    And now later, my comment on sheffner’s blog, which sheffner has not yet approved:

    In pre-Internet 1988, the Berne Convention eliminated the notice and registration requirements previously thought essential to copyright. When the United States acceded to this convention, Congress recognized that this meant elimination of the legal need for notice on products that were not to be copied, and saw danger that innocent people would be made copyright infringers without knowing it. Congress addressed this risk by providing copyright holders incentive to post notice on their phonorecords, namely the elimination of the innocent infringer defense for copying the phonorecord. Users, in effect, were to be held responsible for reading the label before copying.

    Congress provided:
    “[i]f 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 . . . .”

    The “access” of the statute clearly refers to the copyright notice on the phonorecord the user is copying. As Representative Carlos Moorhead (a principal sponsor of the House bill) noted, “[b]y retaining voluntary notice, all these bills acknowledge that for nearly 200 years U.S. copyright users have relied on the content of the copyright notice to distinguish protected from unprotected works . . . Notice is also one of the easiest deterrents to infringement available to copyright holders.”

    The Fifth Circuit decision turns the statutory protection into a trap for the innocent instead of a protection, completely changing the intended meaning of the statute in a way that eliminates connection between the user in the act of infringement and notice to her that her act is infringing. The judgment effectively eliminates the innocent infringer defense for all internet downloading .

    The Fifth Circuit’s decision puts the burden on internet users to search out copyright information on all music files accessible on the net.

    Penalizing innocent infringers for downloading music blights creators of music who want to freely distribute their music. With means to determine that a given music file is not copyrighted, the only sensible rule for a law-abiding internet users to follow (and teach children to follow) is not to download free music at all.

  6. @nesson
    [Penalizing innocent infringers for downloading music blights creators of music who want to freely distribute their music.]

    Nothing precludes creators from distributing freely. It isn't the freely distributed copies by the creators that are at issue, but the illegally distributed copies by non-creators.

    If creators want to distribute their music freely then there is nothing to preclude them from setting up their own distribution channel, rather than using a channel that is 98% flooded with illegal copies.

  7. To: May 28, 2010 2:19 AM

    "If creators want to distribute their music freely then there is nothing to preclude them from setting up their own distribution channel, rather than using a channel that is 98% flooded with illegal copies."

    Somehow a torrent site entitled "Perfectly Legit Bay" does not strike me as one that would likely be bookmarked or appear high on the list of Google's page rankings.

    Even Mr. Nesson's comments fall short of the mark in several instances. For example, he talks about those artists who desire to use P2P as a means of obtaining widespread dissemination of their works, and bemoans what he sees as an impediment to such dissemination. I do have to wonder, though, how many of such works are being distributed free and clear of copyright law. In my experience most are released with CC licenses of widely varying scope, including at least one that prohibits derivative works.

    Of course this discussion is largely theoretical, albeit interesting, in that I daresay the chances for the grant of cert. border somewhere in the vicinity of 0% or less.

  8. @Ben sheffner

    I agree that a phonorecord or phonorecord label are material objects under section 101's definitions. We each quoted the part of section 402 (c) that benefits our argument. It is worth reading the sentence as a whole:

    (c) Position of Notice. — The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.

    The issue then becomes is a "container" restricted by the same definition. Is container in the sentance a modifier for phonorecord or in some other way restricted to the materiel definition of phonorecord? And to be honest I am not sure, I read container as the last in a series, each separate and distinct. As container is not specifically including in section 101's definition the court may have more flexibility here.

    Additionally an audio file can be viewed in more ways then just with ones ear. All operating systems allow users to "get info" or "see the details" of a file. This give the user access to the file type, the size of the file and possibly other meta data. Programs can read the meta data, such as artist, title album, genre and display that to users. I see no reason why copyright status and rights holder could not be one of those pieces of data. Ideally the meta data would even include a URL where one could contact the rights holder to clear rights if needed.

    I do agree that if your interpenetration is correct then there is no easy way, and maybe even no possible way, to add notice to digitally distributed files. With many works moving to digital distribution only this could be a major concern.

  9. @Anonymous May 28, 2:19 PM

    [...bemoans what he sees as an impediment to such dissemination. I do have to wonder, though, how many of such works are being distributed free and clear of copyright law]

    This is slightly off-topic, but it is important not to limit the legitimate use of P2P networks to music that is “free and clear of copyright law”. The Berne Convention, which was adopted in 1988, removed notice requirements and essentially granted limited copyright protection to intellectual property from the time of creation. In effect, no original piece of music is ever distributed free and clear of any copyright law and it is up to the copyright owner to decide the level to which they want to enforce that right.

    Many major artists have come out in support of P2P networks and even illegal downloading (Steve Winwood, Jason Mraz, Heart); others have indicated that downloaders should not be prosecuted (Robbie Williams, Annie Lennox, Peter Gabriel, David Gray, Blur's David Rowntree, Radiohead's Ed O'Brien, Pink Floyd's Nick Mason, the Clash's Mick Jones). So the question instead is whether it is appropriate to litigate against those who do infringe on those rights and to what level.

    Innocent infringement does not absolve the defendant of liability. It is an admission of guilt that allows the courts to mitigate damages for infringers who didn't know any better (reducing the minumum from $750 to $200). The appellate Harper decision essentially removes innocent infringement from the table if notice appears on a CD, even if the defendant never saw the CD (or any CD for that matter).

    It says that a minor is beholden to a notice that she doesn't understand (since copyright generally isn't addressed until college), located on an object she doesn't know to look for, at a location that she may never go to.

    It is important to note that the provision that forecloses innocent infringement was written before the internet was even commercially available and digital CDs were just starting to overtake analog media. At that time, there was no way to duplicate music without having the actual material object in front of you; you couldn't even listen to the thing without a standalone CD player since computers didn't have CD drives back then.

    The notice was right there in your hands to let you know "HEY YOU CAN'T COPY THIS!" It is certainly understandable that no leniency should be granted to someone who chooses to ignore a warning right in front of their faces. The issue gets muddled when you talk about holding a teenager responsible for some notice that exists somewhere else on the planet rather than in their own hands.

  10. @overton

    There are many artists on major labels who support the notion of freely distributing their music even though their labels disagree. Jason Mraz, Steve Winwood, and Heart have supported P2P United in saying that they favor filesharing of their works. The Featured Artists Coalition in England has told Parliament not to prosecute downloaders. The management company of one of the artists whose music is in question in this very case, Avril Lavigne, has opposed the RIAA's actions in at least one case and agreed to support the defendant and pay attorney's fees.

    There is not a unified front on the treatment of copyright. All music has limited protection from the moment it is set in a tangible medium so there is no such thing as music circulating anywhere that is “totally free of copyright laws”.

    While copyrights are guaranteed, there is no obligation to exercise them and it would seem that many artists have chosen to permit filesharing of their music. However, a decision like Harper's, if upheld, would confirm a treatment of infringement as strict liability.

    The Gonzalez test of “access” is so nebulous and generous toward copyright holders that there is no good way of determining which works are copyrighted with strict enforcement and copyrighted works whose owners permit sharing. The Harper decision would further disallow considerations such as the purported legitimacy of the site offering the music and the defendant's understanding of the situation. As such, there is no reasonable choice to protect oneself other than to not download at all, something that would unreasonably restrain commerce and expression.

    I would hope that the Supreme Court deems these issues worth examining. In the wake of the 20,000 or so “pay up or else” law suits filed in DC over Hurt Locker, the highest court should weigh in on the appropriateness of strict liability, the availability of innocences as a mitigating factor, and the application of pre-internet rules on the internet.

    If nothing else, it is appropriate to reconsider these issues to ensure that the legal system is not being abused in an effort to generate profits from playing Gotcha with unwitting consumers. A recent article showed that the profits from lawsuits between the US Copyright Group and their plaintiffs go 70-30.

  11. Mr. Sheffner:

    I certainly understand the practicalities of simply not being able to place a "notice" on a digital file. BUT, I note that the analysis/interpretation you offer above -- wherein you state that you believe a digital .mp3 type file would not qualify as a "material object" for purposes of section 402 -- might/could potentially have negative consequences for copyright owners if adopted in the context of determining whether the P2P downloading of digital .mp3 type files of copyrighted sound recordings(that have first been uploaded w/out authorization to a P2P system by another user) constitutes a distribution of a phonorecord within section 106(3). To qualify as an unauthorized distribution under section 106(3) the digital phonorecord that ultimately results from a P2P download must be a "material object" (as that term is used in the definition of phonorecord in section 101). But if one accepts the notion that .mp3 files are not material objects for 402 purposes, and applies this reasoning to the initial question of infringement, then there could be no infringement via distribution in the file sharing context? (If memory serves, I believe this very issue arose in the Barker and London-Sire cases?). Perhaps I over-thought this?

  12. @Anonymous 9:55:

    Please re-read my comment to which you refer. I did not "state that [I] believe a digital .mp3 type file would not qualify as a "material object" for purposes of section 402." What I said is that "First (and I haven't researched this), I'm not sure whether a digital file like an .mp3 qualifies as a 'material object' under the definition of phonorecord." I still haven't researched this, and I'm not comfortable saying whether I believe an .mp3 is a "material object" until I do.

  13. Anonymous 9;55:

    If you consider an mp3 as a non-material object, then yes, you would affect the ability of rights holders to pursue cases of infringement by distribution.

    However, nothing would affect their ability to pursue the same cases based upon a theory of infringement by reproducing the copyrighted work in phonorecords. Afterall, all that is required is the fixation of the sound recording on a hard disk to make a phonorecord, which is exactly what happens when a P2P user downloads an mp3.

    The focus is just on a different section of 106.

  14. There is another downside to these type suits which apparently no one has thought of. That is these suits have targeted innocent persons then made innocent people pay.
    When an innocent person is targeted and made to pay because they cannot defend against a billion dollar industry, they turn to the government for the protections promised in our constitution. But when government enforcers are asked to investigate the false court claims made against innocent person’s and ignore requests, then government itself has failed in it’s mission to protect and defend. When government fails to protect people with out the means to defend from false claims, then government becomes the accomplice and assists in the enforcement of innocent people having to pay. In my own case, where government has refused to defend against false and fraudulent claims, I have no choice but to subordinate government till government comes back to do there job as our constitution requires the innocent to be protected. Passive resistance such as voting against justice as a juror, looking the other way when a crime occurs are the only way I know of to force government to recognize that innocent people are being made to pay settlements. Government needs to recognize that copyright enforcement as a private enterprise can make mistakes who they decide to sue. That those mistakes will cause decline of our justice system as the more innocent people are made to pay, the more our justice system will loose it’s creditability.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.