You are viewing a read-only archive of the Blogs.Harvard network. Learn more.

Daily Archive for Thursday, May 27th, 2010

Will the Supreme Court Review the Case of the Innocent Infringer?

Whitney Harper has filed her petition for certiorari to the United States Supreme Court to review the Fifth Circuit’s judgment eliminating the innocent infringer defense for music downloaders. Under the ruling there are no innocent downloaders. All are subject to legal penalty and injunction without any need for jury trial.

here is the petition by Whitney Harper’s advocate, K. A. D. (Kiwi) Camara, HLS’02.

i have just read and commented on ben sheffner’s effort to minimize the significance of the case, and am about to twitter.

And now later, my comment on sheffner’s blog, which sheffner has not yet approved:

In pre-Internet 1988, the Berne Convention eliminated the notice and registration requirements previously thought essential to copyright. When the United States acceded to this convention, Congress recognized that this meant elimination of the legal need for notice on products that were not to be copied, and saw danger that innocent people would be made copyright infringers without knowing it. Congress addressed this risk by providing copyright holders incentive to post notice on their phonorecords, namely the elimination of the innocent infringer defense for copying the phonorecord. Users, in effect, were to be held responsible for reading the label before copying.

Congress provided:
“[i]f a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages . . . .”

The “access” of the statute clearly refers to the copyright notice on the phonorecord the user is copying. As Representative Carlos Moorhead (a principal sponsor of the House bill) noted, “[b]y retaining voluntary notice, all these bills acknowledge that for nearly 200 years U.S. copyright users have relied on the content of the copyright notice to distinguish protected from unprotected works . . . Notice is also one of the easiest deterrents to infringement available to copyright holders.”

The Fifth Circuit decision turns the statutory protection into a trap for the innocent instead of a protection, completely changing the intended meaning of the statute in a way that eliminates connection between the user in the act of infringement and notice to her that her act is infringing. The judgment effectively eliminates the innocent infringer defense for all internet downloading .

The Fifth Circuit’s decision puts the burden on internet users to search out copyright information on all music files accessible on the net.

Penalizing innocent infringers for downloading music blights creators of music who want to freely distribute their music. With means to determine that a given music file is not copyrighted, the only sensible rule for a law-abiding internet users to follow (and teach children to follow) is not to download free music at all.

delay in the appearance of this comment on ben’s blog my fault, not his.

jamaica outlook