Court Denies Innocent Infringement Defense To Teen For Sharing Music

from the reasonable? dept

You may recall a few years back that a teenager, Whitney Harper, who was getting sued by the record labels/RIAA for file sharing, claimed that the amount she should have to pay up should be less than the $750 statutory minimum, because she was an "innocent infringer," unaware that what she was doing in listening to music was against the law. In fact, she didn't even realize she was sharing files, but thought she was just listening to music, like radio. Surprisingly, the lower court actually agreed with her and said that $200 per song (for the 37 songs) was an appropriate amount. But, of course, the RIAA appealed, as (despite claims to the contrary in the Tenenbaum and Thomas-Rasset case) they need those huge potential amounts to use as a sledge hammer against file sharers. Unfortunately, an appeals court has overturned the lower court ruling, and said that the statutory minimum of $750 per infringement should apply -- saying that the innocent infringement defense isn't applicable because the CDs the music came on (which she never saw) had proper copyright notices.

As you may know, copyright law does allow for reduced statutory damages on innocent infringement, "where the infringer sustains the burden of proving . . . that [she] was not aware and had no reason to believe that . . . her acts constituted an infringement of copyright." Given the details of this case, that seemed to apply -- but the appeals court was having none of it. In the decision, it argues that the law says an innocent infringer defense cannot be applied (with one exception irrelevant to this case) if a proper copyright notice "appears on the published . . . phonorecords to which a defendant . . . had access."

The court the says that because copyright notices are found regularly on CDs, then Harper effectively "had access" to those recordings, at least enough to know they were covered by copyright. Not surprisingly, I find this argument to be quite troubling. If we assume it is accurate that Harper was using LimeWire as if it were a radio to listen to music, then how would she know that she was violating the copyright on the recordings at all? Would someone listening to the radio know? What about someone listening to Pandora or Spotify. Based on this ruling, anyone can be put at risk of much larger statutory damages for copyright if they simply don't know if the online streaming service they're using has properly cleared the copyrights. That does not seem like a conclusion that makes sense, or would have been intended by Congress. Did Congress really intend for each user to do the research before using any online music service to make sure those services had properly cleared the copyrights?

Filed Under: copyright, innocent infringement, statutory damages, whitney harper


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  1. identicon
    Anonymous Coward, 27 Feb 2010 @ 7:00pm

    Due Dilligence

    So this is what the US legal system has come to. Now, before you listen to any music you need to hire attorneys and have them research the relevant copyrights, subpoena and review licensing contracts, and then maybe go to court and obtain a declaratory judgment that your proposed usage is within the law. If you want to stay legal, that is (because copyright issues can be quite complex). Legally, this is called "due diligence" and the lawyers and courts absolutely love it because they make tons of money in the process.

    You know what? Screw that shit.

    Yow want music, movies, etc.? You might as well infringe then, because even if you try not to, you might accidentally do so anyway and innocent infringement is no defense under the law, it seems. In fact, if you go to a store and buy it then you're probably just giving money to the same people who will take that money and turn around use it to sue you (or your children) someday. Don't be stupid. Don't buy it.

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