The Age of Forgotten Innocence: The Dangers of Applying Analog Restrictions to Innocent Infringement in the Digital Era

December 1, 2011

Recently, two popular topics of discussion within intellectual property law have been the statutory damage regime and the legality of peer-to-peer (P2P) downloading. This Note examines a rarely discussed interplay between these two concepts: the innocent infringement defense. Innocent infringement allows a court to dramatically reduce the minimum statutory damage award for an act of copyright infringement from $750 to $200 per act. Both the Fifth and Seventh Circuits have found that § 402(d) of the Copyright Act eliminates innocent infringement as a matter of law in a P2P download setting.

This Note examines those circuits’ reasoning as well as the various responses from the legal academic community. It argues against those circuits’ interpretation of the phrase “access to published phonorecords,” found in § 402(d), to mean a general availability and a duty to inquire as to the copyright status of the songs in question. By viewing § 402(d) in this light, those courts have effectively eliminated the defense when applied to P2P downloading. This Note advocates for an actual inquiry into a defendant’s state of mind to determine if they had “reason to believe” their actions constituted infringement, which would preserve innocent infringement in a digital environment.

December 2011

No. 3