Proper Copyright Notice Bars ‘Innocent Infringer’ Defense, 5th Circuit Says

Slap a copyright warning on a CD and the law’s “innocent infringer” defense vanishes for any infringing activity, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled last week in a long-running P2P case. The panel overturned part of a San Antonio ruling that said Whitney Harper’s claimed ignorance of copyright law in downloading songs “presented a disputed issue of material fact” suitable for trial. Record labels then sought and received the $200-per-work minimum damages available for innocent infringement, but the parties appealed. A P2P defense lawyer not involved in the case said the 5th Circuit was misinterpreting in the statute the term “access” to a copyright notice.

A teenager when her file-sharing was captured in 2004, Harper said she thought P2P downloading was comparable to Internet radio. She relied on Section 504(c)(2) of the Copyright Act, which provides the $200 minimum where an infringer shows she “was not aware and had no reason to believe” that such behavior was infringing. Section 402(d) preempts innocent-infringer if the infringer has “access” to a phonorecord with a proper notice.

The panel said Harper couldn’t challenge the sufficiency of the evidence that the songs in question were present on her computer. She had reinstalled the operating system after P2P investigator MediaSentry took screenshots of her shared folder, erasing most traces of the songs, but Harper didn’t deny downloading the songs. The panel didn’t address the legitimacy of the labels’ making-available theory of infringement without transfer, because it said Harper didn’t challenge the court’s finding of infringement by way of downloading. By presenting “in a cursory manner” her constitutional challenge to the $750 statutory minimum damages in the Copyright Act, Harper waived the right to assert it, the court said.

The San Antonio court dismissed the notion that access to a commercial CD with a copyright notice was sufficient to show that a defendant “knew that she was accessing copyright material from an entity that did not have permission to distribute such material,” the P2P network. Harper herself simply claimed she was “too young and naive” to associate notice on a CD with downloaded music. But “the plain language of the statute shows that the infringer’s knowledge or intent does not affect its application,” the 5th Circuit said: “Lack of legal sophistication” isn’t a defense. Publishers “trade the extra burden of providing copyright notice for absolute protection” against an innocent-infringer. The San Antonio court must award the sought statutory damages, $750 per work, the panel ruled.

“The mere fact that a copy exists somewhere on the planet with a copyright notice does not preclude” Harper’s defense, and doesn’t count as “access,” said New York-based P2P defense lawyer and blogger Ray Beckerman. The 5th Circuit wrongly assumed Harper had access to copies with a proper notice, a question for the jury, he said.

The main value of the 5th Circuit ruling is to “reaffirm what most courts have said” about legal naivete as a poor defense in many areas of law, a media industry lawyer told us. Innocent infringement is among a handful of “highly unlikely defenses” that have come up mostly in the RIAA’s P2P litigation, and as a result few courts have ruled on its contours. The innocence defense was designed for defendants who “made a good-faith effort to get authorization” to use a work but somehow came up short, the lawyer said. “Access” in the statute means the work was available in the “environment” around a defendant, such as a local retail store or radio. “If [Harper] lives near a Wal-Mart, she has access. It’s trying to be cute in an argument,” the lawyer said.

The scope of the innocence defense was actually decided in a 7th Circuit case, 2005’s BMG v. Gonzalez, Eric Goldman, director of the High Tech Law Institute at Santa Clara University, told us. The 5th Circuit decision mentions Gonzalez but not in the context of innocent-infringer -- the 7th Circuit treated the “access” question as a foregone conclusion, given the availability of works with copyright notices. The law says “if a work in the stream of commerce bears the copyright notice, all infringers are constructively on notice” even if it’s not attached to the copy they acquire, Goldman said. The innocence defense will “rarely be useful” to defendants even if they succeed because of the $200 minimum and judicial discretion to raise that sum, he said -- challenging the constitutionality of statutory damages is a better strategy.