562 U.S. 1080 | SCOTUS | 2010
Dissenting Opinion
dissenting.
I would grant the petition to consider the question whether 17 U. S. C. § 402(d) applies when a person is found to have engaged in copyright infringement by downloading digital music files. Under § 504(c)(1), an infringer is ordinarily liable for statutory damages of “not less than $750 or more than $30,000” per work infringed. In a case involving an “innocent infringer,” however, the minimum statutory damages that must be awarded are reduced. Specifically, if the infringer proves that he or she “was not aware and had no reason to believe that his or her acts constituted an infringement,” then the minimum statutory damages per violation are $200. § 504(c)(2).
In this case, a 16-year-old was found to have infringed respondents’ copyrights by downloading digital music files. The District Court held that there were genuine issues of fact on whether she qualified as an innocent infringer, but the Court of Appeals reversed, concluding that another provision, § 402(d), foreclosed the innocent-infringer defense as a matter of law. Section 402(d) provides, with an exception not relevant here, that if a prescribed notice of copyright “appears on the published phonorecord or pho-norecords 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.” (Emphasis added.) The term “phonorecords” is defined as including only “material objects.”
There is a strong argument that § 402(d) does not apply in a ease involving the downloading of digital music files. This provision was adopted in 1988, well before digital music files became available on the Internet. See Berne Convention Implementation
The Court of Appeals in the present case adopted a very different interpretation of § 402(d). The court held that the innocent-infringer defense was “foreelose[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). 598 F. 3d 193, 198-199 (CA5 2010). 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’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 re
Specifically, 17 U. S. C. § 101 provides:
“‘Phonorecords’ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.”
In BMG Music v. Gonzalez, 430 F. 3d 888 (2005), the Seventh Circuit adopted a similar interpretation of § 402(d).
Lead Opinion
C. A. 5th Cir. Certiorari denied.