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 are consulted by a defendant who actually did engage in file sharing (I know they are in the minority, but there are some out there), but who was not aware that 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.
Commentary & discussion:
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