In SONY BMG Music Entertainment v. Tenenbaum, the Court has asked for "further argument" on the definition of wilfulness.
Judge Nancy Gertner: Electronic ORDER entered, requiring further argument on the question of how "willful infringement" is defined. (The Court is issuing this order so that the parties will be prepared to address the issue; no written briefing is required.) The plaintifss seek an instruction that "willful infringement is that committed with knowledge of or "reckless disregard" for the plaintiffs copyrights. (Instruction #29). Defendant counters that instruction by pointing to section 504(c)'s three levels of statutory damages: the bottom level, the "innocent infringer," is "not aware;" the middle level is arguably the opposite, one who is "aware" and "knowing." The highest level, willfulness, defendant suggests, is reserved for someone who has infringed with more than "knowledge" of the infringement. While plaintiffs' instruction tracks the language of the case law (including a decision of this Court), defendant' argument comports with the statutory structure. (Gertner, Nancy
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