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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