- U.S. Supreme Court denies certiorari in copyright infringement action brought by record companies against plaintiff who asserted the “innocent infringer” defense, and Justice Alito dissents.
The district court held that there were genuine issues of fact on whether the defendant qualified as an innocent infringer, but the U.S. Court of Appeals for the Fifth Circuit reversed, concluding that 17 U.S.C. § 402(d) foreclosed the innocent infringer defense as a matter of law. Section 402(d) provides that if a prescribed notice of copyright “appears on the published phonorecord or phonorecords to which a defendant . . . had access, then no weight shall be given to . . . a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.” The term “phonorecords” is defined as including only “material objects.”
The U.S. Supreme Court denied certiorari without an opinion, but Justice Samuel Alito issued a dissenting opinion, saying that he would grant the petition to consider the question whether the § 402(d) exception to the innocent infringer defense applies when a person is found to have engaged in copyright infringement by downloading digital music files.
As Justice Alito noted, § 402(d) was adopted in 1988, well before digital music files became available on the Internet. As he explained in his dissent, “[t]he theory of § 402(d) appears to be that a person who copies music from a material object bearing the prescribed copyright notice is deemed to have ‘reason to believe that his or her acts constituted an infringement,’ § 504(c)(2). But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that § 402(d) does not apply. In such a case, the question would simply be whether the infringer ‘was . . . aware and had . . . reason to believe,’ § 504(c)(2), that the downloading was illegal.”
According to Justice Alito, the Fifth Circuit adopted a very different interpretation of § 402(d): the court held that the innocent infringer defense was “foreclose[d] . . . as a matter of law” because (1) respondents “provided proper notice on each of the published phonorecords from which the audio files were taken” before they were made available on a file-sharing network and (2) petitioner relied solely on § 504(c)(2) and did not dispute her “access” to the phonorecords under § 402(d).
Justice Alito explained that, under this interpretation, it is not necessary that the infringer actually see a material object with the copyright notice – it is enough that the infringer could have ascertained that the work was copyrighted. “The Fifth Circuit did not specify what sort of inquiry a person who downloads digital music files is required to make in order to preserve the § 402(d) defense, but it may be that the court had in mind such things as research on the Internet or a visit to a local store in search of a compact disc containing the songs in question. In any event, the Court of Appeals rejected petitioner’s argument that her youth and lack of legal sophistication were relevant considerations -- a conclusion that would not necessarily be correct if the determinative question were simply whether petitioner had ‘reason to believe’ that her actions were illegal.”
Justice Alito concluded by saying “The Fifth Circuit’s decision may or may not set out a sensible rule for the post-‘phonorecord’ age, but it is at least questionable whether the decision correctly interprets § 402(d). Although there are now no conflicting Circuit decisions, I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals. The Court has decided not to grant review at this time, but if a conflict in the Circuits develops in the future, the question presented, in my judgment, is important enough to warrant review.”