‘Innocent infringer’ defense in RIAA cases
p2pnet news view | RIAA News:- The decision denying plaintiffs’ summary judgment motion in Maverick v Harper breathes life into the “innocent infringer” defense in RIAA cases, and the practitioner would do well to consider inclusion of this affirmative defense in appropriate cases.
If you’re consulted by a defendant who actually did engage in file sharing (I know they’re in the minority, but there are some out there), but who wasn’t aware he or she may have been infringing the plaintiffs’ reproduction rights when making a copy, in addition to defenses such as those raised in Elektra v Barker, you can also advise him or her of the right to interpose the “innocent infringement” defense, which, while not an absolute bar to the action, may reduce the statutory damages to as little as $200 per copyright infringement.
The RIAA would have to accept $200 per infringement, rather than the $750 to $150,000 sum it seeks —- or else face a jury trial of the innocent infringement defense.
BUT – I want to make clear this material, which appears on my blog as a “Practice Tip”, is a practice tip for lawyers —- ie, I’m advising attorneys on something they might want to consider for their clients.
This is not directed to the general public.
In other words, if you’re not a lawyer, you shouldn’t be ‘advising’ anyone on their possible defenses.
Your advice to your friends should be that they consult a qualified attorney.
Ray Beckerman – Recording Industry vs The People
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[Below is a more detailed post from Ray's site - JN] »»»
In Maverick v. Harper, a San Antonio, Texas, case of which we were unaware until yesterday, the RIAA has been pursuing a college age defendant who admitted to having committed copyright infringement using the Kazaa program when she was 16 years old.
Although admitting copyright infringement, she asserted an innocent infringement defense under 17 USC 504(c)(2), which could reduce the statutory damages to $200 per infringement.
The RIAA argued that defendant could not qualify for ‘innocent infringer’ status, since CD’s of the songs sold in stores have copyright notices.
The Court disagreed, and denied the RIAA’s motion for summary judgment unless the RIAA agrees to accept $200 per infringement:
Plaintiffs request the statutory minimum damages of $750 per work rather than a calculation of actual damages. Defendant contends that due to her age—sixteen years old at the time of the infringement—and technological experience, she did not intentionally violate Plaintiffs’ copyrights and should therefore be considered at most an innocent infringer.
The damages provision of the Copyright Act provides that a plaintiff may elect to seek
minimum damages of $750 per work. 17 U.S.C. § 504(c)(1). However, it also provides that “where the infringer . . . was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” 17 U.S.C. § 504(c)(2). The defendant has the burden to prove the lack of intent necessary for innocent infringement. Id.As evidence of her “innocent” infringement, Defendant presents a signed affidavit stating that before the lawsuit, she “had no knowledge or understanding of file trading, online distribution networks or copyright infringement.” In addition, Defendant stated that “Kazaa and similar products did not inform me that the materials available through their service were stolen or abused copyrighted material and I had no way of learning this information prior to this lawsuit.” (Id., at 13). Plaintiffs contend that by complying with 17 U.S.C. § 402 and placing notices on each the containers and on the surface of the compact discs of the Recordings, they have provided notice such that Defendant could have learned that the Recordings were copyrighted. This argument is not completely satisfactory. In this case, there were no compact discs with warnings.
The Copyright Act provides that “[I]f a notice of copyright . . . appears on the published phonorecord . . . to which a defendant had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement” unless the infringement was believed to be fair use. 17 U.S.C. § 402(d). Although the Fifth Circuit has not addressed this issue directly, the Seventh Circuit has found that an innocent infringer defense did not apply in a case where the defendant “readily could have learned, had she inquired, that the music was under copyright.” BMG Music v. Gonzales, 430 F.3d 888, 892 (7th Cir. 2005). Defendant, relying on Electra Entertainment Group v. McDowell, a case involving a thirteen-year-old girl, argues that her age and knowledge of technology alone should be sufficient to introduce a genuine issue of material fact as to innocent infringement. The McDowell Court held that a genuine issue of material fact was present as to the defendant’s access to the copyright notices. See Electra Entertainment Group Inc. v. McDowell, No. 4:06-CV-115 (CDL), 2007 WL 3286622, at *2 n.2 (M.D. Ga. Nov. 6, 2007).
Although proper notice was provided on the cover of each of the Recordings, a question
remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting. Defendant admitted that she owned compact discs. However, both in her affidavit and in her deposition, Defendant claimed that she believed using KaZaA and similar products to be akin to listening to radio over the internet and did not know that the Recordings were being either downloaded or distributed. She further claimed that prior to this lawsuit, she did not have any understanding of copyright infringement.At the summary judgment stage, all factual disputes must be construed in the light most favorable to the non-moving party—in this case, Defendant. Anderson, 477 U.S. at 255. Defendant has the burden of proving by a preponderance of the evidence that her actions constituted innocent infringement. 17 U.S.C. § 502(c)(2). Plaintiffs have not introduced any evidence to contradict that Defendant did not have an understanding of the nature of file-sharing programs and copyright sophisticated enough to have reason to know that her actions infringed Plaintiffs’ copyrights. Therefore, the Court finds that a fact issue exists as to whether Defendant was an innocent infringer.
Stay tuned.
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August 10th, 2008 at 9:08 am
and when the new copyright law comes to canada , the new anti circumvention aspect will get me over 200,000 in fines for MATERIAL NOT EVEN COPYRIGHTED, all cause the format was ripped from a dvdr.
NICE:
CAN YOU SAY:section 12 charter violation:CRUEL and UNUSUAL PUNISHMENT
August 10th, 2008 at 3:21 pm
Thanks Ray that you arranged with Jon to put the “disclaimer” in front of the reprint.
Reading for example what Judge Xavier R. wrote about the complaining of defendant(s) about the affidavid of Dr. J. not being a “competent” one;
It reads as if defendant got something wrong from reading your experts report about Dr J.’s work in Lindor and confused the competence of his work with given some competent testimonies/affidavits or any other kind of paperwork where competence is measured not in the “intelligence or correctness” of the person, but only in formal stuff like having the stuff sworn under penalty of perjury or some other kind of purly FORMAL stuff.
August 10th, 2008 at 4:32 pm
This innocent infringer reminds me of one of the early suits where the victum bought into one of those “download all the music you want for a low fee” pages (you pay, they give you kazza ect.). Got caught, claimed she had perchased leggaly, and like above they had no mercy.
It is so easy to create a legal looking page now a days.
I’m waiting for the Itunes clone lawsuit.