Supreme Court Asked To Explore Whether 'Innocent Infringement' Is A Legit Response In File Sharing Cases

from the might-not-matter-after-acta... dept

A few years back, we wrote about a teenager who used "innocent infringement" as a defense to an unauthorized file sharing lawsuit brought against her by the RIAA. Innocent infringement is in the law, as a way to reduce the statutory awards from the $750 minimum to $200. It doesn't absolve the person or get them out of paying, but can greatly lower the amount. The district court agreed, and said she could just pay the $200 rate. However, an appeals court overturned, saying that because CDs have copyright notices on them -- even though the girl never saw the CDs -- the girl should have known that the mp3s were infringing. The logic there made very little sense. How can you hold someone to a clause that was never seen?

The girl's lawyers have now appealed the case to the Supreme Court, which now has the option of weighing in on the matter (the Wired article linked here is a little misleading, in that at the beginning and in the headline, it implies that the Supreme Court has agreed to hear the case). If I had to guess, I'd say the Supreme Court won't take the case, even though it is an important issue.

Filed Under: copyright, innocent infringement, supreme court

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  1. icon
    Mike Masnick (profile), 28 May 2010 @ 4:07pm


    The law is clear that the innocent infringer defense is taken off the table if a copyright holder has met the requirements associated with "marking" such a notice, and in this case if fairly appears that such requirements as specified in the applicable statute were met

    Actually, that's not clear at all, which is why the lower court found that the copyright holder had NOT met the requirements. This is very much an open question.

    What the defendant is trying to do here is have a court "judicially amend" an otherwise clear statute to craft an exception to digital files.

    I believe you are misrepresenting the position of the girl and her lawyers because you disagree with it.

    I must agree with Mr. Masnick's observation that this case has at best an almost zero chance of being heard by the Supreme Court since as yet there is not a conflict between two or more of our federal appellate courts. Even so, and as noted by Mr. Sheffner, it does raise some interesting questions because by the very nature of P2P only digital content is involved, whereas the statute was crafted at a time when physical media was the predominant means of distributing musical content.

    I read Sheffner's analysis, and I believe he is mistaken. He argued that if we accept Harper's view on this, that it would mean all P2P infringing could be considered innocent infringement, because there would be no marking. But I don't believe that's true at all. It just means that the copyright holder would have to show additional evidence that the alleged infringer knew it was against the law. That does not seem like a particularly hard burden in most cases.

    In the context of this case where a statute is clear on its face, arguments that nip at the margins of the statute face a significant uphill battle in trying to convince what are conservative judicial bodies to declare that such statutes are of constitutional proportions.

    Again, the statute is not as clear as you make it out to be.

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