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Harper v. Maverick

By Barry Werbin

The news of the moment is that yesterday, Nov. 29., the U.S. Supreme Court denied cert. in the Harper v. Maverick case, which had raised the question of whether the Copyright Act's innocent infringer defense could apply to when a person downloads digital music files so as to further reduce the minimum statutory damages award below the $750 threshold per work infringed to as little as $200 under 504(c)(2). The Fifth Circuit had held that Section 402(d) foreclosed application of the innocent infringer defense because it provides that if a copyright notice "appears on a 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."

Justice Alito, however, filed a dissent, which can be accessed here for anyone interested: www.supremecourt.gov/orders/courtorders/112910zor.pdf. He noted that Section 402(d) is limited to "phonorecords," which the Act defines as including only "material objects." He argues that this Section was adopted in 1988, long before the digital revolution, and a person who downloads a digital music file does not and cannot see any copyright notice. In such a case, he argues (as did the District Court that was reversed by the Fifth Circuit) that the defendant (here, 16 years old) should have the opportunity to establish that she was not aware of or did not have reason to believe she was engaging in illegal infringing activity. The Fifth Circuit interpreted 404(d) as only requiring that the original phonorecord display a copyright notice, and that an infringer could have ascertained the work was copyrighted. Justice Alito wrote that "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."

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