If your teenager or college student still thinks downloading music from the internet for free is ok, beware. Cases involving young people infringing copyrights in sound recordings over the internet using file sharing programs continue. In 2004, MediaSentry, a company retained by several music recording entities to investigate the infringement of their copyrights over the internet, identified an individual using a file sharing program to share 544 digital audio files with other users of a peer to peer network. The shared audio files included a number of copyrighted sound recordings owned by members of the consortium that hired MediaSentry. By tracing the user’s internet protocol address, the consortium ultimately identified Whitney Harper, a high school cheerleader, as the individual responsible for the file sharing. Federal court copyright infringement litigation then ensued.
Under the Copyright Act, the owner of a copyright in a sound recording has the exclusive rights to reproduce, distribute, display and perform the work publicly by means of a digital audio transmission. An infringer is liable for either the copyright owner’s “actual damages and any additional profits of the infringer,” or “statutory damages.” Proving profits attributable to the infringement can be difficult; as an alternative the copyright owner may choose to rely on the provision for statutory damages. Where the copyright owner elects to recover statutory damages, with one exception, the court is obliged to award between $750 and $30,000. It may also increase the award of statutory damages up to $150,000 if it finds that infringement was committed “willfully.” The exception to the $750 – $30,000 award applies if the infringer proves that he or she was not aware, and had to reason to believe, that his or her acts constituted an infringement. In that case, the court in its discretion may reduce the award of statutory damages to $200.
During discovery, plaintiffs examined Ms. Harper’s computer and ultimately determined that she had downloaded 37 audio files with copyrights that were owned by the plaintiffs. The district court found infringement but denied the recording companies’ request for statutory damages. They had requested the minimum damages of $750 per infringed work. The defendant asserted that her infringement was “innocent,” and the district court found that question to be a disputed issue of material fact.
Reserving the right to appeal the district court’s legal conclusion on the innocent infringer issue if Ms. Harper appealed the finding that infringement occurred, the plaintiffs moved for entry of judgment in the amount of $200 for each infringed work, the minimum amount due from an innocent infringer. The district court granted the plaintiffs’ motion and entered judgment against Harper. Harper appealed, perhaps to her regret, and the plaintiffs cross appealed on the innocent infringer issue.
The Fifth Circuit opinion in Harper v. Maverick Recording Company, et al. is available here: http://tinyurl.com/23×958m. One argument raised by Ms. Harper on appeal was whether the statutory provisions for damages violated due process by imposing “grossly excessive damages.” She argued that, at the time of the infringement, she was young and did not know that what she was doing was unlawful. Fining her several hundred dollars per song for illegal downloading, she contended, did not comport with substantive due process. The Fifth Circuit dodged that issue by holding that she waived her constitutional challenge by failing to raise it below properly.
Even worse for Ms. Harper, the Fifth Circuit held that the “innocent infringer” defense was unavailable to her as a matter of law. The Copyright Act provides that a notice of copyright may be placed on publicly distributed “phonorecords.” “Phonorecords” are defined in the statute as material objects in which sounds are fixed and from which the sounds can be communicated, either directly or with the aid of a device. Furthermore, the Act states that, if a notice of copyright appears on the published phonorecord to which a defendant in a copyright infringement suit had access, “then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement….” The district court had held that Ms. Harper’s access to the compact discs with the notice thereon did not resolve the question whether she knew the warnings were applicable in the file-sharing network setting. But the appellate court held that her reliance on her own understanding of copyright law, or lack thereof, was irrelevant. Use of the notice on the compact discs absolutely protected the copyright owners against the innocent infringer defense.
Although the copyright owners had been willing to settle for $200 per infringed work in the district court if Ms. Harper did not appeal on the infringement and due process issues, she did so appeal. Finding against Ms. Harper on those issues, the Fifth Circuit awarded minimum statutory damages of $750 per infringed work.
Ms. Harper filed a petition for a writ of certiorari in the Supreme Court on May 26. The recording companies waived their right to respond to the petition. However, on September 15 the Supreme Court specifically requested a response from the recording companies by October 15. This may indicate that the Court is interested in hearing this matter, and we may ultimately have a final resolution of the “innocent infringer” question.