Saturday, February 27, 2010

5th Circuit rules innocent infringement defense not supported in Maverick v Harper

In Maverick Recording v. Harper, a case against a Texas teenager in which the trial court had held that there were triable issues concerning whether or not she could avail herself of the "innocent infringement" defense, the Fifth Circuit has reversed, and held that defendant could not invoke "innocent infringement" where she:

-had admittedly made unauthorized downloads of all of the 16 song files in question; and
-never disputed that she had "access" to the CD versions of the songs which bore copyright notices

The Court also found that the "making available" issue was irrelevant to the appeal, and that the "due process" issue as to the excessiveness of the statute's $750-per-infringed-work statutory damages had not been preserved for appeal.

5th Circuit Decision

[Ed. note. The Court's treatment of the innocent infringement defense is unsatisfactory. It appears that the Court may be misinterpreting the word "access" in the statute, following the same error committed by the Gonzalez court. The mere fact that a copy exists somewhere on the planet with a copyright notice does not preclude the "innocent infringement" defense. The defense was created to protect someone who -- like Ms. Harper -- had copied something which bore no copyright notice. The Court likewise errs in assuming, without plaintiffs' ever having proved, that the defendant had access to copies which bore the copyright notice.

I do not disagree with the proposition that the statute makes a person's lack of legal sophistication irrelevant if he or she made the infringing copy from a copy which bore the copyright notice. But that is a big "if", since it did not occur here. -R.B.
]

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

19 comments:

Anonymous said...

From TITLE 17 > CHAPTER 4 > § 402

(c) Position of Notice.— The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.

I find it hard to believe that she had access to a label on the hard drive or the container of the servers where the plaintiffs published their MP3 files.

just a biased observer

Ray Beckerman said...

It seems to me that the Court has misinterpreted the statute.

Anonymous said...

"The mere fact that a copy exists somewhere on the planet..."

This isn't a case where the only copy available is in a cave in Bombay. A copy most certainly exists right down the street at the local Wal-Mart or mall.

"The Court likewise errs in assuming, without plaintiffs' ever having proved, that the defendant had access to copies which bore the copyright notice."

And you err in assuming that it's the plaintiffs' duty to prove access. Rather, it is the heavy burden of the defendant to prove that any infringement was innocent. To hold otherwise would merely allow the defendant to make a naked claim of innocence, which would be upheld absent a plaintiff's ability to disprove it, essentially reading into the statute a rebuttable presumption not supported by the language.

-JR

Alter_Fritz said...

@-JR
If it is (as you claim) not the burdon of plaintiffs to prove that a defendant had acess to a copy of the copyrighted work which bears the notice then can you please explain to me how a defendant can prove a negative?" I am blind, I can not see" looks to me as the only way to prove a negative situation.

@biased observer
interesting argument you make.
I heared that there are more and more "illegal" mp3 files allegedly ripped by "those illegal ripping crews" flowting in those p2p networks around that curiously bear in the mp3 tag sections a "copyright" notice.
Something that as I understood it was not the norm before the MAFIAA started to sue customers or lawfirms like Holme Roberts and Owen started to profit from this behaviour or from setting up "convinient online credit card payment settlement" homepages.

Alter_Fritz said...

--
A_F

Interested said...

I'm not sure that the Court misinterprets the word "access." They seem to characterize the defendant as conceding that she had access to the work by not preserving the issue for appeal.

I just re-read the District Court's decision, which states the following regarding the defendant: "She testified that she did not copy these files from
compact discs that she owned. (Docket No. 49, Exhibit H, at 41)." (see p. 6.) I'd be interested to read the actual testimony to see whether the defendant admits to owning the CDs, or if she simply admits to downloading music.

Anonymous said...

Alter_Fritz -

It's not as I claim; it's as the law and the courts claim. The burden of the plaintiffs is to show that an infringement occurred. Once that happens, the burden shifts to the defendant to prove the existence of a defense. Because one important element of the innocent infringement defense is the presence or absence of a properly noticed authorized copy of the infringed work, it is the defendant's duty to show that he or she didn't have access to that work to know that it was copyrighted.

This isn't a case where the alleged infringer was disabled, or where the only copy alleged to be infringed exists in a vault in another country. This girl is charged, according to the complaint, with infringing 37 contemporary works (Avril Lavigne, Madonna, Faith Hill, Jessica Simpson, etc), all of which are arguably available at any store that sells music.

-JR

Ray Beckerman said...

Dear Anonymous JR:

It is pretty obvious that she sustained that burden when she proved to the satisfaction of all concerned that her downloads were from mp3 files over the internet which did not bear copyright notices.

Those are the "phonorecords" to which everyone agrees she had "access".

The statute is not intended to deprive a defendant of an innocent infringement defense when she copied something that bore no notice.

If you think "access" within the meaning of the statute means that some other copy, somewhere else on the Earth, was accessible had she searched for it, then you are incorrect, and are giving the statute a meaning which it does not have.

I will concede that the Gonzalez court made the same asinine mistake. But that does not make it correct.

Anonymous said...

I would argue that everyone clearly doesn't agree that digital files are the phonorecords to which she had access, otherwise the appellate court wouldn't have reversed that part of the decision. And rightly so, because to decide otherwise would contradict not only the clear wording of the statute, but also that of the definitions section.

I'm not sure why you think the access decision is asinine. The presumption of access is the same in traditional infringement suits, especially when the works infringed (as the songs are here) are particularly popular or widely-available.

With regard to notice, it seems that you are the one attributing meaning to the statute that isn't there by arguing that mp3 files over the internet have to have 402 notices on them. "Phonorecords," to which the notice rules apply, "are material objects" onto which the work is fixed. An mp3 file does not fit this definition. On a hard disk platter, it is little more than a magnetic polarity. In transit over the internet, it is even less, an incorporeal set of 0s and 1s. If we follow your logic, publishers would either have to stamp copyright information on infringers hard disk drives, or somehow include copyright information on all infringing copies floating around the internet. If anything is asinine, it's that. Afterall, how does one place notice on the "surface of" of "on the ... label or container" of a digital file?

Here, the court properly decided that the statute means what it says. The compact disks available in any retail store in her hometown (the actual material fixations of the copyrighted works) bore the required notice. Therefore, because she had access to those works, she was under constructive notice that they were copyrighted. Therefore, she cannot be an innocent infringer.

Again, if we take your argument to its logical conclusion, it would allow the innocent infringer exclusion (which is a narrowly tailored exception to a strict liability offense) to swallow the rule by making innocent infringers out of anyone who made an infringing copy of an infringing copy (even if it was knowingly and purposeful).

-JR

Anonymous said...

It's hard to see how the "innocent infringer" defense can be used at all if all that's required to negate it is "notice somewhere else".

I'm surprised the appeals court didn't examine this more closely, since they have rendered a portion of the law nearly impossible to use.

XYZZY

mathinker said...

1. The logic that there was "access" to a CD with a copyright notice somewhere seems silly and superfluous. My understanding is that since the reform of US copyright law vis-à-vis the Berne convention, all creative works are automatically imbued with copyright at the time of their creation. Am I missing something here?

2. Given my point above, the court's argument actually hinges on the assumption that the rights holders of copyrighted works by default want to forbid access. This is obviously not true for the majority of works, which are non-commercial in nature (e.g., if everyone worked using this assumption, the Internet would grind to a screeching halt). The question at hand is actually whether one could innocently believe that music files similar to those in question could be licensed for free, legal download. To intelligently address this question, the court would have to investigate what is the state of music on the Internet, including how and how much the plaintiffs distribute their music for free, and how much similar music is legally available for free, for example, under a CC license.

Anonymous said...

XYZZY -

"It's hard to see how the "innocent infringer" defense can be used at all if all that's required to negate it is "notice somewhere else".

Negating the defense was exactly the point of the notice provision in 402. Because the implementation of the Berne Convention abolished the requirement of notice on distributed works to preserve copyright, Congress decided to amend the law to provide an incentive for the continued use of notice. This incentive was the absolute preclusion of the innocent infringer defense. The House Report on the matter states: "To encourage use of notice, [the House] amends current law...to specify that in the case of defendants who have access to copies bearing proper notice of copyright, courts shall not give any weight to a claim of innocent infringement...."

Mathinker -

"The question at hand is actually whether one could innocently believe that music files similar to those in question could be licensed for free, legal download. "

Also according to the House report, "innocent intent does not constitute a defense to copyright liability." Appropriately, it's not a topic for consideration, especially given the otherwise strict liability nature of infringement.

-JR

Anonymous said...

It is disgusting that the semantics of the word "access" are being used to decide whether a teenage cheerleader should be assessed $200 or $750 for a 75 cent item that she may or may not have known was illegal.

Just an Observer.

Travis said...

Matt Said "My understanding is that since the reform of US copyright law vis-à-vis the Berne convention, all creative works are automatically imbued with copyright at the time of their creation"

So I could create some audio recording. Throw it up and wait for people to download it then sue the snot out of them because it was imbued with copyright at the time I created it?

If I put a copyright notice somewhere on the web to which anyone with a computer has "access" am I good to sue them?

mathinker said...

@ JR

"Negating the defense was exactly the point ..."

Thanks for the clarification. If I understand you, you are saying that the judges can't really be blamed for this lame decision, the responsibility rests on Congress.

So the legislature decided it was a good idea to negate a part of the statute which minimized the negative impact of the statute on society, in order to encourage a practice which has no practical benefit to society (the notification). Great. This really, really makes me want to respect this law, eh?

Anonymous said...

"to encourage a practice which has no practical benefit to society"

Notice performs several vital functions. It signals that the work in question is under copyright, distinguishing it from works in the public domain. And it provides necessary information, such as the copyright owner's name, so that one may contact them to request a license or permission to use the work.

Perhaps you would like to elaborate on the confusion to society of no notice whatsoever?

-JR

mathinker said...

@JR "Notice performs several vital functions. It signals that the work in question is under copyright, distinguishing it from works in the public domain." It can't help society to distinguish copyrighted works from works in the public domain, unless notice is mandatory. And in practice, since there is no liability in doing so, everyone just slaps on a copyright notice even if they haven't done any creative work (for example, on reprints of public domain art). So, no, notice has no practical value in this regard.

"And it provides necessary information, such as the copyright owner's name, so that one may contact them to request a license or permission to use the work." I daresay that 50-year-old contact details aren't particularly useful for locating private individuals (but probably do have some utility for locating publishing houses). And for more recent works it is often unnecessary to have notification because it is clear who is the rights holder even without it. So, I'll cede you a little tiny bit on this point --- it might help me find a corporation which owns the rights, but my guess is that in most cases it wouldn't agree to give me permission for use without my paying them (and as a private individual, it would be unusual for me to find that useful).

Anonymous said...

"And you err in assuming that it's the plaintiffs' duty to prove access. Rather, it is the heavy burden of the defendant to prove that any infringement was innocent. To hold otherwise would merely allow the defendant to make a naked claim of innocence, which would be upheld absent a plaintiff's ability to disprove it, essentially reading into the statute a rebuttable presumption not supported by the language.

-JR "

I'm fairly sure you are the one in error here. The "rebuttable presumption" you speak of is amply supported by common law, the First Amendment, and other parts of the Bill of Rights.

The right to freedom of speech and the press establishes that courts must allow people to assume published works are not covered by legal monopolies *unless* such people are given notice -- a point which few courts seem to have noticed, but which is valid nonetheless.

From then on, numerous legal principles will show you that infringement requires *intent* in order to justify any damages beyond actual damages.

Of course, both Congress and the courts have done inestimable damage to copyright law in recent decades. We will see if they continue to do so or whether they go back to Constitutionally valid interpretations of the law such as were common in the past.

--NN

Anonymous said...

NN -

The Constitution, including the Bill of Rights, has nothing to do with a civil lawsuit between two private parties, and even less to do with any sort of rebuttable presumption that you would like to read into the statutory law.

Moreover, given that the Berne Convention provides a framework for protection to attach automatically to works upon their fixation, your assertion that the First Amendment somehow allows people to otherwise assume such works are in the public domain is groundless. I would ask you to cite to some support for any of your points, but it would simply be a rhetorical question because none exists.

Finally, copyright infringement is a strict liability offense. Therefore, intent, or lack thereof, is meaningless.

-JR