The US Supreme Court declined on Monday to take up a case examining the extent to which those accused of illegally downloading copyrighted material from the Internet may claim the protection of an "innocent infringement" provision.
The issues arose in the case of a Texas teenager who was sued by an association of record companies for allegedly downloading 37 copyrighted songs onto her computer without paying for them.
Under the law, 16-year-old Whitney Harper faced a fine of up to $750 for each downloaded song. She argued that she was not aware that the file-sharing program on her computer was dealing in stolen property. She said she thought the songs could be downloaded for free, just like listening to the radio on the Internet.
In instances when a song is downloaded by someone who did not know she was infringing a copy right, the law provides for a $200 fine per song. Whitney admitted that she downloaded the music, but she said her actions were innocent and that her fine should be $200 per song.
A federal judge agreed. But a panel of the Fifth US Circuit Court of Appeals reversed the decision.
The record companies had provided adequate legal notice to consumers that they faced sanctions for unauthorized use of the recordings, the Fifth Circuit ruled. The companies posted copyright notices on CD containers.
Whitney’s lawyers argued that posting warning notices on CD covers did not provide actual notice to Whitney, who was downloading the songs from the Internet onto her home computer.
Nonetheless, the appeals court ruled that the CD notification was enough to provide Whitney and others with fair warning of the risks of infringing the record companies’ rights. It said that Whitney could not claim that she was an innocent infringer.
The Supreme Court’s decision not to take up the case allows the Fifth Circuit’s narrow interpretation of the “innocent infringer” provision to stand.
Justice Samuel Alito wrote in a three-page dissent that he would grant review in the case to examine the Fifth Circuit’s interpretation of the innocent infringer provision. Justice Alito said the relevant law was written in 1988 in reference to “phonorecords.” Under that provision, anyone who had access to a physical “phonorecord” with a copyright warning label was considered on notice and could not claim the protection of the innocent infringer provision.
The question in the Harper case was how that provision should apply in the post-phonorecord age of digital music available on the Internet.
The Fifth Circuit ruled that notices on CD containers in a music store were enough to put potential Internet downloaders on notice. The innocent infringer provision is unavailable, the court said.
“Under this interpretation, it is not necessary that the infringer actually see a material object with the copyright notice,” Alito wrote. “It is enough that the infringer could have ascertained that the work was copyrighted.”
“The court of appeals rejected [Whitney’s] argument that her youth and lack of legal sophistication were relevant considerations,” he said. The justice added that rather than focusing on a physical notice, the more relevant question would be whether the individual had reason to believe her actions were illegal.
In urging the court to take up the case, Whitney’s lawyers had said that, under the Fifth Circuit’s rule, downloading music on the Internet will never be an innocent infringement.
The case was a result of a massive enforcement operation undertaken by recording companies against suspected copyright infringers. The association hired investigators and lawyers who sued or threatened to sue 40,000 individuals. Many were students who were unable to hire a lawyer or pay the massive fines.
Lawyers for the recording companies said the enforcement operation was being scaled back. They said the appeals court’s analysis is correct and that as long as proper notice is attached to CDs in record stores, additional notice is not necessary on the Web.