Innocent Infringer Defense Ruled Out

other users of a peer-to-peer network. the shared audio files included a number 5 ruling on cross-motions for summary judgment, the district court found inc, a delaware corporation; sony bmg music entertainment, a c. due process no. 08-51194 amount of $200 per infringed work, the minimum amount that could be awarded infringed came from this newly discovered cache. bar to the innocent infringer defense. under this scheme, it would make no the district court correctly granted summary judgment on the issue of � 402(d), which gives publishers the option to trade the extra burden of providing placing their work into the public domain by failing to include a notice of 6 failure to contest the alternative, independent ground on which the district court examination showed that its operating system had been reinstalled in 2005. as limitation on the innocent infringer defense. harper's reliance on her own appeals from the united states district court show that three file-sharing programs had been installed and used on the she had infringed plaintiffs' copyrights by downloading, and hence reproducing, responsible for the file sharing. it, we will not address it on appeal." fdic v. mijalis, 15 f.3d 1314, 1327 (5th we review a grant of summary judgment de novo and apply the same legal facts and evidence must be taken in the light most favorable to the non-movant." each of the published phonorecords from which the audio files were taken. it espino, 806 f.2d 1001, 1002 (11th cir. 1986). software, inc., 407 f.3d 332, 339 (5th cir. 2005). "if a party wishes to preserve no. 08-51194 9 to establish that, as a matter of law . . . an individual knew that she was of law. the innocent infringer defense is limited by 17 u.s.c. � 402: with one to reproduce its software." 166 f.3d 772, 791 (5th cir. 1999); see � 106(1). in found her liable for copyright infringement renders superfluous her argument no. 08-51194 discs that she had bought legally. found, however, that regardless of harper's access to the published harper argues that, for 31 of the 37 recordings, there was insufficient february 25, 2010 b. copyright infringement that the innocent infringer defense presented an issue for trial, and remand whitney harper the metadata associated with each file, which included the name of the artist this understanding is supported by the historical structure of the an argument for appeal," it "`must press and not merely intimate the argument incentive for use of the same type of copyright notice." id. that incentive is the the operating system was reinstalled. it also revealed a new cache of 2004. she also cannot contest the existence of the 15 audio files that were part for the fifth circuit contains one count, for copyright infringement. plaintiffs alleged that harper copyrights by downloading the 37 audio files at issue. it erred, though, by of distribution). we need not address the "making available" argument at this material: � 402(d) forecloses, as a matter of law, harper's innocent infringer during the proceedings before the district court.'" id. at 340 (quoting new york publication." 2-7 melville b. nimmer & david nimmer, nimmer on copyright damages. and because plaintiffs requested the minimum statutory damages standard of review that the recording is subject to copyright" for � 402(d) to bar the innocent of the cache of approximately 700 songs discovered on harper's hard drive in copyrighted work to the public by sale or other transfer of ownership, or by (7th cir. 2005), cert. denied, 547 u.s. 1130 (2006). gonzalez explained that the affirm the district court's finding of copyright liability, reverse its finding finder could draw a reasonable inference that harper had not downloaded them in the united states court of appeals she also contends that she did not infringe plaintiffs' copyrights by "making & david nimmer, nimmer on copyright � 7.02 & n.26.1 (2009). before davis, clement, and elrod, circuit judges. fifth circuit on plaintiffs' motion, the court entered a final judgment against harper in the no. 08-51194 had violated their copyrights in two ways: first, by reproducing the copyrighted (1988). before the berne convention was adopted, publishers ran the risk of 4 of judgment as to 37 audio files, six of which harper admits were on her computer, she must to the material facts." thibodeaux v. vamos oil & gas co., 487 f.3d 288, 295 rental, lease, or lending." 17 u.s.c. � 106. plaintiffs' second amended complaint $200 per infringed work if it finds that the infringer "was not aware and had no delaware general partnership phonorecords, such access would not necessarily put her on notice of the motion for summary judgment merely by claiming some metaphysical doubt as � 7.02(c)(3) (2009). but the bcia, in part through � 402(d), "preserves an case: 08-51194 document: 00511035257 page: 4 date filed: 02/25/2010 audio files, and second, by making them available to others, which plaintiffs computer, including a program known as limewire, which had been used after stated that she had notified the district court of her intent to challenge the it below in a manner that would allow the district court to rule on it. "it is well was young and did not know that what she was doing was unlawful, and that that appellant whitney harper infringed copyrights held by a consortium of or intent does not affect its application. lack of legal sophistication cannot2 in her opposition to plaintiffs' motion for summary judgment, harper and song. this information allowed plaintiffs to identify those sound recordings litig., 334 f.3d 643, 645 (7th cir. 2003) ("swapping" music files over the internet due from an innocent infringer. the court granted plaintiffs' motion and entered does not constitute "distribut[ion]" under � 106(3). cf. elektra entm't group, a. sufficiency of the evidence harper contends that the statutory scheme of damages for copyright so, it clarified its finding that harper infringed plaintiffs' exclusive rights to both the audio files. because plaintiffs only seek minimum statutory damages, the assuming arguendo that harper made a prima facie case that she was an copyrights by downloading the audio files is supported by case law in this and exception not relevant here, when a proper copyright notice "appears on the case: 08-51194 document: 00511035257 page: 1 date filed: 02/25/2010 copyrights by downloading music through a file-sharing network. 430 f.3d 888 overcome a properly asserted � 402(d) limitation to the innocent infringer mediasentry downloaded in full over the peer-to-peer file-sharing network in during discovery, plaintiffs examined harper's computer. the affirm the district court's finding of copyright infringement but reverse its to ensure that each of the 544 audio files was a downloadable file, allowing harper's innocent infringer defense to survive summary judgment. we violations outlined in � 504, as applied to her, violates due process by imposing be challenging the sufficiency of the evidence on 31 audio files. united states court of appeals district court discretion to reduce the minimum statutory damages from $750 to "infringes copyright"); a&m records, inc. v. napster, inc., 239 f.3d 1004, 1014 section 106 of the copyright act grants copyright owners the exclusive rule out the innocent infringer defense as a matter of law. comport with substantive due process. defense. because the defense does not apply, plaintiffs are entitled to statutory harper infringed plaintiffs' exclusive right to reproduce their copyrighted forth in � 504(c)(1). harper asserted that her infringement was "innocent" under simply not pressed in harper's brief in a cognizable fashion. instead, it was standard as the district court. miller v. gorski wladyslaw estate, 547 f.3d 273, inconclusive and that a jury could find that the file remnants discovered in the the district court denied plaintiffs' request for statutory damages. 277 (5th cir. 2008). summary judgment should be rendered if the record understanding of copyright law--or lack thereof--is irrelevant in the context of 2 recordings inc, a delaware corporation; arista records llc, a 3 time, however, because harper did not appeal the district court's finding that d. "innocent infringer" defense the district court denied each party's motion for reconsideration. in doing v. in a "shared folder" accessible by users of a peer-to-peer file-sharing network had downloaded all of the files from the internet to the computer without paying other circuits. in alcatel usa, inc. v. dgi technologies, inc., this court held that screen shots showing all of the files that harper was sharing. it also captured life ins. co. v. brown, 84 f.3d 137, 141 n.4 (5th cir. 1995)). "if an argument is � 504(c)(2), which provides that "where the infringer sustains the burden of infringement in mitigation of actual or statutory damages." id. � 402(d). the nature of file-sharing programs and that she believed that listening to music a result, most of the files present on the computer in 2004, when mediasentry sense for a copyright defendant's subjective intent to erode the working of files are primary infringers." 430 f.3d at 889; see also in re aimster copyright acknowledged using a peer-to-peer file-sharing network and stated that she 17 u.s.c. � 504(c)(2). harper averred in an affidavit that she did not understand f i l e d she had downloaded them. she also testified that she had not copied any of the violate plaintiffs' reproduction rights."). 7 judgment in the amount of $200 for each infringed work--the minimum amount for trial. plaintiffs must be awarded statutory damages of $750 per infringed work in copies or phonorecords," the preparation of "derivative works based upon no. 08-51194 on which they held a copyright. mediasentry fully downloaded six of the audio works by downloading the 37 audio files to her computer without authorization. reserving the right to appeal the district court's legal conclusion on the parties, the court also entered an injunction against harper. from file-sharing networks was akin to listening to a non-infringing internet the uncontroverted evidence is more than sufficient to compel a finding harper's argument relies on the computer forensic expert's inability to judgment against harper. harper appealed, and plaintiffs cross-appealed. the district court correctly found that harper infringed plaintiffs' radio station. the district court ruled that this assertion created a triable issue plaintiffs � appellees-cross-appellants copyrights that plaintiffs' second amended complaint alleged that harper convention implementation act ("bcia"), pub. l. no. 100-568, 102 stat. 2853 no. 08-51194 as to whether harper's infringement was "innocent" under � 504(c)(2). order is limited to matters presented to the district court." keelan v. majesco her computer's hard drive in 2008. that inability was due to the 2005 movant is entitled to judgment as a matter of law." fed. r. civ. p. 56(c). "[a]ll 10 recognized "some of the songs . . . as music i listened to and may have she downloaded and shared the 16 contested audio files. mediasentry's screen delaware limited liability company; warner brothers records in june 2004, mediasentry, a company retained by plaintiffs to approximately 700 recordings downloaded since the reinstallation. fifteen of the in august 2008, the district court granted plaintiffs' motion for summary 2 argument that the evidence of infringement was insufficient. violates due process. plaintiffs argue that the district court erred by failing to averred that she thought her actions were equivalent to listening to an internet contended only that she was too young and naive to understand that the on appeal, and at oral argument, rather than contest the fact of "access," harper argue is tantamount to "distribution." the district court found that the in short, the district court found a genuine issue of fact as to whether compact discs were applicable in this [file-sharing network] setting." the court shots of harper's "shared folder" indicate that she was sharing the contested district court to find that 31 of the 37 audio files at issue existed on her1 audio files present in 2004. harper asserts that the 2008 forensic evidence is of 33 out of 39 audio files. that sum reflects a miscalculation. after the district court's entry in her brief, harper asserts that the evidence was insufficient to show the existence1 distribute such material." in her brief opposing summary judgment and brief no. 08-51194 in denying plaintiffs' motion for summary judgment as to damages, the reproduction would remain. facts and proceedings no. 08-51194 inc. v. barker, 551 f. supp. 2d 234, 239-47 (s.d.n.y. 2008) (collecting cases in downloaded to the computer." others, the underlying finding of copyright infringement predicated on copyright holders to elect "to recover . . . an award of statutory damages for all copyrights: "a question remains as to whether defendant knew the warnings on no. 08-51194 innocent infringer issue if harper appealed, plaintiffs moved for entry of that she had downloaded the audio files. in her deposition, she did not deny that "presented in a cursory manner" insufficient to preserve it for appeal. in re unreasonable punishment." harper did not cite any provision of the constitutionality of the copyright act. she then presented the whole of her harper, however, waived her constitutional challenge by failing to raise 2008 examination were something other than downloaded audio files. defendant � appellant-cross-appellee 2008. the issue, then, is whether plaintiffs made an undisputed showing that harper had downloaded the remaining 16 audio files. case: 08-51194 document: 00511035257 page: 6 date filed: 02/25/2010 of plaintiffs' copyrighted sound recordings. by tracing the user's internet copyright law. what is now � 402(d) was amended as part of the berne violated due process. the district court did not rule on her conclusory and published . . . phonorecords to which a defendant . . . had access, then no weight for innocent infringement. harper appealed and plaintiffs cross-appealed. we copyright. "under the bcia," however, "notice is no longer required at reinstallation of the computer's operating system, which overwrote most of the against the "making available" theory. even if the court agreed that harper did � 402(d). the plain language of the statute shows that the infringer's knowledge constitution or explain why the punishment was so unreasonable that it maverick recording company, a california joint venture; umg these arguments are insufficient to defeat the interposition of the � 402(d) work. defense. not raised to such a degree that the district court has an opportunity to rule on infringer defense, because knowledge that some cds are copyrighted does "little plaintiffs had requested the minimum damages of $750 per infringed work set discussion question before the court is whether harper's actions violated the copyright act, case: 08-51194 document: 00511035257 page: 7 date filed: 02/25/2010 grossly excessive damages. she argues that, at the time of the infringement, she and copyright infringement itself has no mens rea element. 2-7melville b.nimmer copyrights on published music applied to downloaded music. settled in this circuit that the scope of appellate review on a summary judgment the district court's unchallenged ruling that harper infringed plaintiffs' the audio files to verify their existence and recovered metadata from which it discounted the argument "that one need only have access to some cd and see files from harper's "shared folder." subsequent discovery indicated that harper evidence of infringement because the audio files were not found on her computer. computer. she does not contest the existence of the six audio files that no. 08-51194 harper was an innocent infringer. the innocent infringer defense gives the harper cannot rely on her purported legal naivety to defeat the � 402(d) bar to protocol address, plaintiffs ultimately identified harper as the individual harper argues that making audio files available to others by placing them copyright notice for absolute protection against the innocent infringer defense. cir. 1994). foundation of the supreme court's holding in mgm studios, inc. v. grokster, (9th cir. 2001) ("napster users who download files containing copyrighted music fining her several hundred dollars per song for illegal downloading does not radio station. the district court found that whether her infringement was judgment on their copyright claims for 37 audio files. by agreement of the clerk mediasentry initiated a download of the entire group. the company captured recover complete copies of the 16 contested audio files when the expert searched could identify the artist and song title of each file. (5th cir. 2007) (quotation omitted). the district court properly rejected harper's case: 08-51194 document: 00511035257 page: 9 date filed: 02/25/2010 case: 08-51194 document: 00511035257 page: 5 date filed: 02/25/2010 for further proceedings consistent with this opinion. reproduce and distribute the 37 songs on which they held a copyright. shall be given to such a defendant's interposition of a defense based on innocent for the western district of texas harper intended to infringe plaintiffs' copyrights, but that issue was not being applied by the plaintiff is unfair and over-reaching and exacts an the copyrighted work," and the distribution of "copies or phonorecords of the for them, and that she had not copied, or "ripped," any of the songs from compact undisputed evidence showed harper had done both. available" the audio files and that the copyright act's statutory damages scheme case: 08-51194 document: 00511035257 page: 11 date filed: 02/25/2010 audio files from her computer in 2004. mediasentry also initiated downloads of ltd., 545 u.s. 913 (2005), "is a belief that people who post or download music case: 08-51194 document: 00511035257 page: 3 date filed: 02/25/2010 bmg music v. gonzalez, the seventh circuit held that a defendant infringed acts constituted an infringement of copyright, the court in its discretion may reason to believe that his or her acts constituted an infringement of copyright." or that they were something other than audio files. harper "cannot defeat a an "innocent infringer" under 17 u.s.c. � 504(c)(2) was a question for the jury. harper submitted no evidence that calls into question plaintiffs' showing right "to do and to authorize," inter alia, the reproduction of "the copyrighted infringement. her innocent infringer defense. conclusion not how or to what extent they violated it. see 17 u.s.c. � 504(c)(1) (allowing infringements involved in the action, with respect to any one work"). harper's record companies in 37 sound recordings. it also found that whether harper was accessing copyright material from an entity that did not have permission to system by downloading it caused users to violate the plaintiff's "exclusive right charles r. fulbruge iii not "distribute" the recordings under � 106(3) by making them available to proving . . . that [she] was not aware and had no reason to believe that . . . her conclusion that harper could press the "innocent infringer" defense. that harper had downloaded the files: there was no evidence from which a fact- the district court acknowledged that plaintiffs provided proper notice on "innocent" presented a disputed issue of material fact. reduce the award of statutory damages to a sum of not less than $200." harper case: 08-51194 document: 00511035257 page: 8 date filed: 02/25/2010 individual using a file-sharing program to share 544 digital audio files with the distribution of a microprocessor card that made copies of an operating edith brown clement, circuit judge: district court held that there was a genuine issue of material fact as to whether 11 recordings to her computer from compact discs that she purchased, and she performed its investigation, had been overwritten. the forensic examination did case: 08-51194 document: 00511035257 page: 2 date filed: 02/25/2010 harper's argument ignores the voluminous and undisputed evidence that case: 08-51194 document: 00511035257 page: 10 date filed: 02/25/2010 harper argues that plaintiffs did not present sufficient evidence for the lemaire v. la. dep't of transp. & dev., 480 f.3d 383, 387 (5th cir. 2007). constitutional argument: "whitney harper believes that the copyright law, as investigate the infringement of their copyrights over the internet, identified an which courts have considered but not embraced the "making available" theory unsupported assertion. it was not remiss in failing to do so. the point was 8 no. 08-51194 under � 504(c)(1), harper's culpability is not an issue and there are no issues left demonstrates that "there is no genuine issue as to any material fact and that the innocent infringer, we hold that the defense was unavailable to her as a matter