Court grants summary judgment in favor of music companies against a direct infringer for downloading songs

BMG Music along with other recording companies brought an action for infringement of copyright against Cecilia Gonzalez, for having downloaded 30 songs onto her home computer. The defendant admitted to having downloaded the songs, thereby directly infringing the copyright of the plaintiff recording companies. She sought immunity for her actions, however, under the dual defenses of fair use and innocent infringement. The District Court for the Northern District of Illinois rejected her defenses and granted summary judgement in favor of the plaintiffs. Additionally, the court rejected the defendant’s arguments for mitigation of damages.

The defendant claimed that her acts amounted to fair use of the copyrighted works as she was only sampling the songs to decide if she wanted to purchase them. The court relying on A&M Records v Napster [239 F.3d 1004, 1014-19 (9th Cir, 2001)], held that sampling by a direct infringer is not fair use. Her assertion that she owned some of the recordings she downloaded was also rejected on the ground that the plaintiffs were seeking relief only against the downloading of the songs admittedly not owned by the defendant.

Further, the defendant argued that her acts were fair use because they did not cause any financial harm to the plaintiffs. The court rejected this argument as well, stating that the cumulative effect of direct infringers, rather than merely plaintiff’s own infringement, must be assessed. In the court’s opinion such effect would be to harm the recording industry by reducing sales and raising barriers to the industry’s entry into the market for digital downloading of music.

The court thus granted summary judgment and issued an order restraining the defendant from downloading recordings owned by the plaintiffs.

The defendant sought mitigation of damages to the level of minimum damages provided for in 17 USC § 504(c)(2) on the ground that she was an innocent infringer. The court, rejected this claim as well, noting that under § 402(d) the defendant was barred from raising the defence of innocent infringement because notice of copyright appears on published copies of the recordings downloaded by the defendant.

The court thus refused to mitigate damages to the statutorily provided minimum level, and awarded $ 22,500 in damages.