Don’t say that we didn’t warn you: Copyright can be strong, strong medicine. Try “$750 per song” strong.
For all of the thousands of Internet users who skate by unpunished for posting episodes of “Lost” or “The Daily Show” on YouTube, there’s the occasional Whitney Harper to remind us that “everybody’s doing it” won’t get you out of a speeding ticket, and it won’t get you off the hook for downloading copyright-protected music without paying for it either.
Whitney was a 14-year-old Texas eighth-grader when she started using what was at the time a music file-sharing site, KaZaA (now operating as a paid subscription service) to download and share songs. Whitney did not realize — until it was too late — that purchasing a song does not give the buyer the right to make the song available online for strangers to copy.
That was Unpleasant Surprise Number One. Unpleasant Surprise Number Two was that music producers were using a proprietary service, MediaSentry, to remotely detect when files containing their songs were transferred over peer-to-peer sites. Whitney was the unlucky speeder to trip the radar, and five music companies slapped her (and her father, later dismissed from the case) with a copyright infringement lawsuit over a total of 37 songs.
Unpleasant Surprise Number Three turns out to be that, at least in the view of one federal appeals court, it doesn’t matter a bit that Whitney innocently copied the files unaware that doing so violated copyright law.
In a 3-0 ruling handed down last month, the Fifth Circuit U.S. Court of Appeals rejected Whitney’s argument that the penalty should have been reduced because, at the time, she believed downloading a song from KaZaA was as legal as listening to it for free on the radio.
The ruling is a rather harshly limited interpretation of the “innocent infringer” defense contained in Section 402(d) of the Copyright Act. Under the Copyright Act, a court can reduce the minimum penalty to $200 per song if it the music was obtained without knowledge that it was protected by copyright. Although Whitney testified that she saw no copyright warning on the KaZaA site, the court was not persuaded.
Section 402(d) prevents an infringer from claiming “innocence” if the copyright warning appears on a recording to which the infringer “had access.” Putting the copyright notice on the original CD, the court decided, conclusively prevents any infringer from claiming innocence, even if there is no evidence that person ever saw the CD.
In other words, as a practical matter, it’s impossible (at least in the Fifth Circuit states of Texas, Louisiana and Mississippi) to claim innocence as to any commercially distributed music, since every music label will be able to show that it displayed the copyright notice somewhere.
Students making entertainment videos often ask the Student Press Law Center how much trouble they can get into for reproducing entire songs and posting them online in a format that can be copied. In the case of (now-college senior) Whitney Harper, the answer is: exactly $27,750 worth. And it appears that it will no longer matter whether you knew or intended to do anything wrong.