The Supreme Court has declined to hear an appeal in a dispute that lies at the intersection of old and new media. The case involves provisions of the Copyright Act that were enacted to protect "phonorecords" and the issue of whether those provisions apply to peer-to-peer file sharing over the Internet.
In 2008, Whitney Harper was found liable for copyright infringement based on her sharing of 37 digital audio files that belonged to the Plaintiffs – which included Maverick Recording Company, UMG Recordings, Arista Records, Warner Bros. Records, and Sony BMG Music Entertainment. The case was decided on a motion for summary judgment, in which the court's role was to rule on legal issues about which there was no genuine issue as to any material fact. The court found that the undisputed facts established Harper's liability for copyright infringement. However, the issue of damages was another story.
In 2008, Whitney Harper was found liable for copyright infringement based on her sharing of 37 digital audio files that belonged to the Plaintiffs – which included Maverick Recording Company, UMG Recordings, Arista Records, Warner Bros. Records, and Sony BMG Music Entertainment. The case was decided on a motion for summary judgment, in which the court's role was to rule on legal issues about which there was no genuine issue as to any material fact. The court found that the undisputed facts established Harper's liability for copyright infringement. However, the issue of damages was another story.
Under 17 U.S.C. § 504(c)(1) of the Copyright Act, in certain circumstance, the plaintiff may be awarded "statutory damages" of a minimum of $750 per infringement. However, § 504(c)(2) generally permits the judge to reduce that amount to a minimum of $200 per infringement in the case of an "innocent infringer" who was not aware – and did not have reason to know – that her acts constituted copyright infringement.
Plaintiffs sought the minimum statutory damages awardable under § 504(c)(1) of the Copyright Act: $750 per infringed work. However, Harper argued that her infringement was innocent and that she thought her actions were equivalent to listening to an Internet radio station. She asserted that her infringement was “innocent” because she was not aware that her acts constituted copyright infringement. Thus, she argued that under § 504(c)(2), the court had discretion to reduce the award of statutory damages to a sum of no less than $200 per infringement.
The trial court found that whether her infringement was “innocent” presented a disputed issue of material fact. As a result, although the court granted the plaintiffs' motion for summary judgment on the issue of liability, it denied the request for statutory damages.
On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed the trial court’s finding of copyright liability but reversed the finding that the innocent infringer defense presented an issue for trial. The Court of Appeals concluded that another provision of the Copyright Act – §402(d) – foreclosed the innocent infringer defense as a matter of law.
Section 402(d) provides, in pertinent part, that if a proper copyright notice “appears on the published phonorecord or phonorecords to which a defendant . . . had access, then no weight shall be given to . . . a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.” However, that provision was adopted in 1988, before digital music files were able to be shared over the Internet. In any event, the Court of Appeals found that the "innocent infringer" defense does not apply in a case of peer-to-peer infringement where the copyright owner affixed proper notices on physical CDs embodying the work at issue.
Harper filed a petition to the U.S. Supreme Court. Last week, the court declinee to hear the case. However, Justice Alito dissented, asserting that §402(d)'s reference to "phonorecords" was critical and that a person who downloads a digital music file today generally does not see any material object bearing a copyright notice. He recognized that there was a strong argument that §402(d) does not apply in a case involving the downloading of digital music files.
In the end, Justice Alito's position did not carry the day and the Supreme Court denied Harper's petition, letting the Fifth Circuit's opinion stand.
In the end, Justice Alito's position did not carry the day and the Supreme Court denied Harper's petition, letting the Fifth Circuit's opinion stand.
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