Update Needed? Digital Downloaders and the Innocent Infringer Defense

• Publication year: 2013

Washington Journal of Law, Technology and Arts Volume 8, Issue 5 Spring 2013

Update Needed? Digital Downloaders and the Innocent Infringer Defense

Colin Conerton (fn*)© Colin Conerton

ABSTRACT

Over the past decade, the music industry has suffered unprecedented piracy and digital music has become increasingly prevalent on illegal websites. In response, the Recording Industry Association of America (RIAA) has filed lawsuits against many alleged copyright infringers who have illegally downloaded music from the Internet. A few of these alleged infringers, in an effort to reduce damages, claimed they were "innocent infringers." Several courts ruled that the innocent infringer defense did not apply, based on 17 U.S.C. § 402(d), which precludes the defense if proper copyright notice appears on "phonorecords" (e.g., compact discs). The Supreme Court denied certiorari in one such case, Harper v. Maverick Recording Co., but Justice Samuel Alito filed a dissent, arguing that certiorari should have been granted to address whether notice published on phonorecords applies to copyright infringement cases involving music downloaded from the Internet. Justice Alito's dissent raises an important question: should the innocent infringer defense be unavailable as a matter of law in music downloading cases if copyright notice is available on physical media to which the downloaders may never have had access? This Article explores this issue by examining Justice Alito's dissent and considering whether the Court should address the applicability of § 402(d) in music downloading cases.

TABLE OF CONTENTS

Introduction..................................................................................588

I.Background...........................................................................590

A.Digital Downloading........................................................590

B.The Innocent Infringer Defense in Copyright Law..........591

II.Maverick Recording Co. v. Harper......................................592

III.Justice Alito's Dissent..........................................................594

IV.Analysis................................................................................595

A.Argument against Barring the Defense............................595

B.Argument for Barring the Defense...................................597

Conclusion...................................................................................597

Practice Pointers...........................................................................598

INTRODUCTION

Total revenue in the music business has dropped from $14.6 billion in 1999 to $6.3 billion in 2009.(fn1) Although many factors have contributed to the music industry's financial decline-the rise of online streaming services, the increased availability of podcasts, and the iTunes model of single-song downloads-the increase in online music piracy has been a primary factor. some individuals have largely stopped purchasing albums and instead illegally download music online free of charge. For years, the Recording Industry Association of America (RIAA) fought back directly, suing over 35,000 people.(fn2) Many individuals settled, recognizing they were caught "red handed" in a clear case of copyright infringement. Some chose to fight back, claiming that any damages should be reduced because they were "innocent infringers" because they were "not aware and had no reason to believe that their acts constituted an infringement of copyright."(fn3)

Generally, defendants may assert the innocent infringer defense in copyright litigation. Although innocent infringers are still liable for damages, a court may reduce those damages if the defendant can demonstrate that he or she is an innocent infringer. However, under 17 U.S.C. § 402(d), the defense is not available when a defendant has copied phonorecords that contain a proper copyright notice.

The Fifth Circuit Court of Appeals recently considered the innocent infringer defense in Maverick Recording Co. v. Harper.(fn4) In Harper, the 16-year-old defendant claimed that her downloading of 37 songs was innocent because she did not understand that copyrights on published music applied to music downloaded off the Internet. The court disagreed, stating Ms. Harper's "own understanding of copyright law-or lack thereof- is irrelevant in the context of § 402(d)" and that she could not overcome the notice limitation in § 402(d) because the copyright holder placed appropriate copyright notice on the published song recordings and that these notices were accessible to the public.(fn5)

The Supreme Court denied certiorari.(fn6) Justice Alito dissented, arguing that certiorari should have been granted to address whether notice that has been published on phonorecords should apply to copyright infringement cases involving music downloaded from the Internet.(fn7)

The reasoning underlying Justice Alito's dissent highlights an important question: should notice of copyright displayed on compact discs (CDs) or other physical media apply to music transferred from these media and ultimately downloaded without the notice?

I. BACKGROUND

A. Digital Downloading

The manner in which consumers legally purchase music has changed dramatically over the last 20 years. No...