This is a reprint of an earlier practice tip, published last September, regarding the nonrecoverability of statutory damages for recordings whose copyright registration effective date is preceded by the defendant's commencement of the use of an "online media distribution system" (i.e. a p2p file sharing program).
Recently, in Maverick v. Harper, attention was drawn to the "innocent infringement" defense provided for in 17 USC 504(c)(2). This defense is especially important because it can be used by those defendants who actually did engage in copyright infringement. In Harper the Judge required the RIAA to either accept $200 -- as opposed to $750 -- per file in statutory damages, or to proceed to a jury trial in an attempt to disprove the defendant's 'innocence'.
An even more potent "defense" should be considered carefully by defendant's lawyers in all of the RIAA cases, both in those cases where the defendant had nothing to do with any file sharing, and in those cases where the defendant did in fact engage in file sharing.... the provision in 17 USC 412(1) to the effect that plaintiffs are precluded from recovering statutory damages for "any infringement of copyright in an unpublished work commenced before the effective date of its registration".
We are aware of no RIAA case in which this issue has been litigated, although it was raised in the answer filed by Tenise Barker in Elektra v. Barker. If you are aware of any litigation of this issue in an RIAA case, please let me know.
Among the reasons this defense is so important are the following:
1. The RIAA's actual damages are ~35 cents per recording, as opposed to the statutory damages they seek of 2000 times or more the actual damages. If they were limited to their actual damages, there would be no cases.
2. The defense is not an affirmative defense at all, but it is a part of plaintiffs' prima facie case for statutory damages to prove the fact of the effective date of the registration prior to the infringement.
3. The courts have held that if an ongoing course of conduct is alleged, the registration must have been prior to the date on which the course of conduct commenced. See, e.g., Homkow v. Musika Records, Inc., 2008 U.S. Dist. LEXIS 14079 (S.D.N.Y. February 26, 2008); Irwin v. ZDF Enters. GmbH, 2006 U.S. Dist. LEXIS 6156 (S.D.N.Y. 2006); Shady Records, Inc. v. Source Enters., 2004 U.S. Dist. LEXIS 26143 (S.D.N.Y. 2004).
4. Since the RIAA never pleads any specific acts of infringement, nor any dates or times, but always alleges that the infringement is the use of an 'online media distribution system' on a 'continuing' basis, all the cases would be subject to that principle. I.e., if a defendant began using the 'online media distribution system' in 2004, and plaintiffs are suing for infringement of sound recording copyrights that were registered in 2005 and 2006, plaintiffs would be relegated to their actual damages only.
In cases where this defense is applicable, defendants' lawyers should consider making partial summary judgment motions seeking a determination that plaintiffs are relegated to their actual damages only.
It does not appear that Judges have been looking into this question in connection with default judgment applications. Hopefully, they will take a closer look at the date and time of the alleged infringement, and the effective date of the registration of the copyright infringement, before awarding any statutory damages.
Commentary & discussion:
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