Labels oppose cert. in 'innocent infringer' case

The major record labels have filed their opposition to the defendant's cert. petition in Maverick Recordings v. Harper, arguing that the admitted peer-to-peer user is absolutely barred from asserting an "innocent infringer" defense under 17 U.S.C. § 504(c)(2) because they had properly affixed copyright notices to CDs containing the songs she infringed. 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.").

Here's the intro to the labels' brief:

This case involves a straightforward application of 17 U.S.C. § 402(d). Petitioner has never disputed that Respondents placed proper copyright notices on the published sound recordings at issue and that Petitioner had access to these published works. Therefore, as the Fifth Circuit correctly determined, section 402(d) bars Petitioner from asserting a so-called “innocent infringement” defense as a matter of law.

Petitioner’s primary argument for certiorari rests on the false premise that the circuit courts are divided on the legal standard for applying section 402(d). There is, however, no circuit split. The Second Circuit authority upon which Petitioner relies never even considered the application of section 402(d). In addition to the absence of any circuit split, this case provides an ill-suited vehicle for considering the legal standard for applying section 402(d). Petitioner’s argument that a lack of copyright notice on the specific digital recordings she infringed should defeat application of section 402(d) does not square with the plain language of the statute, ignores Petitioner’s admission that she had access to Respondents’ published works carrying the proper copyright notices, and was never raised in the lower courts. For all of these reasons, the Court should deny the Petition.

The Fifth Circuit here and the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) came to the the same conclusion on this very point in very similar cases. And the label's brief explains why D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) -- which did not involve sound recordings, the Internet, or indeed 17 U.S.C. Sec. 402(d) -- is not in conflict with Harper and Gonzalez, the defendant's arguments to the contrary notwithstanding.

See my previous posts on this case here and here.
Plaintiffs' Opposition to petition for certiorari in Maverick Recordings v. Whitney Harper