Electra Entertainment v. McDowell: Is a thirteen year old still innocent (infringer)?

A federal district court in Georgia ordered a jury trial last week on the question whether a thirteen year old defendant was an innocent infringer or not. In Electra Entertainment Group Inc. V. Sarah McDowell (2007 WL 3286622 (M.D.Ga.), a teenager defendant admitted to have used P2P networks for exchanging sound recordings, but objected the demand of plaintiffs (the record companies) to pay maximum statutory damages of $750 per infringement, in this case 48 times, which makes the fine figure of $36k.

Defendant admitted to have violated the Copyright Act, but she pleaded the innocent infringement defense provided under section 504(c)(2) of the Copyright Act, according to which damages may be reduced at the discretion of the court down to $200 per infringement, if the court believes that the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.”

According to section 402(d) of the Copyright Act, however, once the phonorecord complies with the notice requirement specified in section 402, defendant may no longer benefit from the innocent infringement defense:

if 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 two factual questions are whether the teenager was not aware or had no reason to believe that her P2P activities were infringing, and if so, whether a proper notice has destroyed her defense.

The music companies argue for a negative answer to the first question and a positive answer to the second. Accordingly, they demanded two things; (1) an injunction, and (2) a summary judgment on the statutory damages issue. The court granted the injunction, but denied summary judgment, ordering a jury trial instead:

First, the Court finds that there is a question of fact as to whether Defendant, as a thirteen or fourteen year old child at the time of the infringement, was aware or had reason to believe that her acts constituted an infringement of a copyright. Second, assuming that Defendant was an innocent infringer, there is a question of fact as to whether Defendant had access to the notice of copyright such that her innocent infringer defense has no mitigating effect.

If the parties do not settle, there will be another P2P jury trial, the second after the bitter defeat of Jammie Thomas a short while ago (my comment here).

In the face of the blitz campaign run by the content industry, it might be difficult to convince a militant jury that babies older than three years old do not yet know that using P2P networks to exchange songs is a serious offense (see link to a particularly harsh campaign video here). However, it is not impossible. If so, the following question should be answered: In order to squash the innocent infringer defense, does section 402(d) requires that defendant's access to the notice shall occur while observing a notice placed on top of the same or identical phonorecord used by the infringer for the purpose of infringement, or whether a general knowledge about the notice would suffice?

The court notes plaintiffs' view: “Plaintiffs respond that Defendant ‘had access to proper copyright notice at any location sound recordings are sold, and consequently Defendant cannot be an innocent infringer.“ According to plaintiffs' theory, hence, a general knowledge about the notice as it appears on legit copies available through the legit distribution channels is enough. The court does not dispute this interpretation, but this is not the only possible reading of the law.

Section 402(2), which specifies the required position of the notice, could provide ammunition to the defendant’s counsel: “The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.” This implies a relationship between placing a notice on the physical copy and access to the notice from that copy.

It is quite obvious that copyright notice is likely to appear on legitimate copies, but not on illegally swapped files. In its brief discussion, the court takes the position that as a matter of law, access to the notice, no matter how, sufficed to eliminate innocent infringement defense. The factual question is whether defendant indeed had “access to the notice of copyright such that her innocent infringer defense has no mitigating effect.”

The court adds in a footnote:

Plaintiffs contend that Defendant had access to the copyrights because she has, in the past, bought compact disks from a retail store … Plaintiffs' argument is flawed because it ignores the fact that, at the time of her deposition, Defendant had just bought a compact disk from a retail store … Defendant did not state whether she regularly purchased compact disks from retail stores at the time she infringed upon Plaintiffs' copyrights. In fact, Defendant was only thirteen or fourteen at the time of the infringement. Additionally, Defendant declared that at the time of the copyright infringement, any compact disk she may have owned would have been bought for her by her mother … There is therefore a question of fact as to whether Defendant “had access” to the notice of copyright.

Which drives the point home. The mother bought CDs for her child, therefore she is on notice, therefore the mother cannot be innocent, and in the end, she is the one that will have to pay (statutory damages) for the poor education she has given her daughter anyway ... In our contemporary distorted copyright climate, someone in a position of influence might swallow this without even burping.

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