Does Innocent Copyright Infringment by Downloading Music Exist?

Author: Craig E. Pinkus

A 16 year-old at the time she listened to music through a website claiming to be “100%” lawful asked the US Supreme Court last July to review the decision of the 5th Circuit Court of Appeals against her. Petition for Writ of Certiorari, Whitney Harper, Petitioner v. Maverick Recording Company, et al. , No. 10-94 (U.S. July 16, 2010). One of thousands of young people sued for copyright infringement by downloading music, the judgment and damages awarded against her were apparently so routine for the recording industry that it waived the right to respond to the petition.

In the wake of an amicus brief filed by Harvard Law professor Charles Nesson and others, however, the Court in a simple letter from the clerk requested a response from the record industry by October 15, 2010. For most lawyers and clients, this is a request you cannot refuse.

An “innocent infringer” defense is provided by the Copyright Act. 17 U.S.C. § 504(c). It is not a complete defense but can be considered by the court as a matter in mitigation that can reduce a damage award for the acts in question. Of particular interest in the 7th Circuit is that the denial of certiorari would arguably affirm the decision in BMG Music v. Gonzalez, 430 F.3d 888, 892 (7th Cir. Ill. 2005) which makes a showing of innocent infringement in these cases a virtual impossibility.

There is naturally no guarantee the Court will grant certiorari, but the request for a response means that it is more likely than is the case with nearly all certiorari petitions. Many observers have argued for years that the flood of lawsuits against downloaders would ultimately fail as a business strategy for the music industry in the internet world. But a cert grant holds the possibility that the legal strategy will need to be revised without waiting for the business strategy to change.