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. Continue reading