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Innocent Infringer Defense: Silver Bullet or Misunderstood

Innocent infringement is one of the most oft-asserted yet most misunderstood defenses in copyright infringement litigation. Many defendants reflexively assert the defense without fully understanding what it means and what is required to successfully establish it. Understanding what the innocent infringer defense is and what it is not are essential for defendants to know how and when to assert the defense or for plaintiffs to know how to overcome the defense.

Statutory Basis for the Defense

The innocent infringer defense comes from Section 504(c)(2) of the Copyright Act. The section provides in pertinent part that “in a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.”

Innocent Infringer is not Synonymous with Unintentional Infringer

Most defendants who allege the defense confuse innocent infringement with unintentional infringement, believing that if they did not infringe the plaintiff’s copyright intentionally they must be an innocent infringer. Intent, however, is not relevant to copyright infringement liability as copyright infringement is a strict liability tort (the caveat being liability for contributory infringement which does require intent). Copyright infringement has not always been strict liability though. In fact, the United States’ first copyright statute only provided liability for “knowing infringement.” The Copyright Act of 1909, however, removed the knowing requirement for liability and the Copyright Act of 1976, the current copyright statute, maintained that omission.

While unintentional infringement is a requirement to assert the defense, it is not the only requirement. Section 504 provides that the defendant not only “was not aware” that its use of the work infringed the plaintiff’s copyright but also that it “had no reason to believe” that its acts constituted infringement. Courts have found that even unintentional infringers had reason to believe they were infringing where (1) the work contained a copyright notice, (2) the circumstances surrounding the defendant’s acquisition of the work were suspicious (e.g. internet downloading), and (3) where the nature of the work indicated that it likely was copyrighted. Additionally, courts have held that the defense is available only to “unsophisticated” parties and precluded sophisticated parties such as large companies from asserting the defense.

Innocent Infringement is not a Defense to Liability

Many defendants who assert the innocent infringement defense believe that it is a defense to copyright infringement liability. This is not true. An innocent infringer is an infringer nonetheless. The defense only comes into play when calculating statutory damages for the infringement.  When a defendant proves the elements of the innocent infringer defense, the judge may in its discretion reduce any award of statutory damages to as low as $200 per work infringed. A judge is not required to reduce an award of statutory damages, even if the defendant proves it applies. The reduction, if any, of statutory damages, is left up to the judge’s discretion and judges have been reluctant to reduce damages to this minimum. In fact in the defense’s nearly five decades of existence, there are only a handful of reported decisions reducing an award of statutory damages to the $200 minimum.

The Defense is not Applicable When the Plaintiff Seeks Actual Damages

Another misconception about the defense is that it applies no matter what type of damages the plaintiff is seeking for the infringement. The defense, however, is found in Section 504(c)–the section that deals with awards of statutory damages. Section 504 does not provide for reducing an award of actual damages if the defendant proves that it is an innocent infringer. Thus, a plaintiff seeking to avoid the availability of the defense should seek an award of actual damages under Section 504(b) instead of statutory damages under Section 504(c).

The Defense is Not Available when the Work Contains a Copyright Notice

Many defendants who assert the innocent infringer defense do not realize that the defense is unavailable as a matter of law where the copyrighted work contains a copyright notice. Section 401(d), 402(d), and 404(a) provide that an innocent infringement defense is barred as a matter of law where the work infringed contained a copyright notice. Even if the copy of the work that the defendant obtained did not have a copyright notice (e.g. a pirated or downloaded copy), a defendant is not off the hook just yet. These sections provide that the defense is barred if the work has a copyright notice or if the defendant has access to an authorized copy of the work which has a copyright notice. The Seventh Circuit has found that a defendant has access to an authorized copy where the work is sold generally to the public.

Although many defendants assert the innocent infringer defense, few have succeeded in actually proving it. An experienced copyright attorney can be invaluable for a plaintiff seeking to avoid the defense or have it stricken as a matter of law. Likewise, a defendant seeking to assert and prove the defense can also benefit from a skilled copyright attorney who will know what evidence is required to establish the defense.

The Defense is Not Available when the Work Contains a Copyright Notice

Many defendants who assert the innocent infringer defense do not realize that the defense is unavailable as a matter of law where the copyrighted work contains a copyright notice. Section 401(d), 402(d), and 404(a) provide that an innocent infringement defense is barred as a matter of law where the work infringed contained a copyright notice. Even if the copy of the work that the defendant obtained did not have a copyright notice (e.g. a pirated or downloaded copy), a defendant is not off the hook just yet. These sections provide that the defense is barred if the work has a copyright notice or if the defendant has access to an authorized copy of the work which has a copyright notice. The Seventh Circuit has found that a defendant has access to an authorized copy where the work is sold generally to the public.

Although many defendants assert the innocent infringer defense, few have succeeded in actually proving it. An experienced copyright attorney can be invaluable for a plaintiff seeking to avoid the defense or have it stricken as a matter of law. Likewise, a defendant seeking to assert and prove the defense can also benefit from a skilled copyright attorney who will know what evidence is required to establish the defense.Super Lawyers named Illinois commercial law trial attorney Peter Lubin a Super Lawyer and Illinois business dispute attorney Patrick Austermuehle a Rising Star in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex class action, copyright, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes.  Our Evanston and Lake Forest business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0333 or our toll-free number (833) 306-4933.  You can also contact us online here.