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.
Monday, November 29, 2010
4 comments:
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Big surprise the Supreme Court chooses not to hear this case. They'd be condemning & creating criminals out of the majority of the public, since they've already demonstrated how they'd most likely rule from past cases of similar nature.
ReplyDeleteCert having been denied, I expect that defendant's counsel is none too happy that the 5th Circuit's decision stands and the case will not be remanded back to the district court. Is there seriously any doubt that the "innocent infringer" gambit was little more than a means to an end; namely, the opportunity to once more urge the district court to take up the question of statutory damages and their alleged unconstitutionality under the rationale successfully asserted in Gore with respect to punitive damages?
ReplyDeleteIt looks like the statutory damages question will now move over to another case (e.g., Tenenbaum, JRT) where the question has been preserved for appeal.
Hello Ben,
ReplyDeleteCould you please do me a favor and explain this in layman's terms. I thought I understood, but then I read Matthew's comment which to me says the opposite.
Can Harper still claim to be an innocent infringer?
Randy
@Randy:
ReplyDeleteThe Fifth Circuit ruled that Harper cannot claim the "innocent infringer" defense because the record label plaintiffs had affixed proper notices on physical CDs embodying the works 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 Supreme Court's refusal to hear the case leaves the Fifth Circuit's decision in place.