HOW COPYRIGHT LAW HAS LEFT AN ENTIRE GENERATION VULNERABLE TO BANKRUPTING LIABILITY: THE NEED TO PROTECT INNOCENT INFRINGERS IN COPYRIGHT LAW
Abstract
In February 2010, the Fifth Circuit U.S. Court of Appeals held, in Maverick v. Harper, that when a record company places a copyright notice on a published compact disc (CD), such notice is dispositive to a claim of innocent infringement by a person that illegally downloads the music on that copyrighted CD. This note challenges the Fifth Circuit’s holding on the basis that it is inconsistent with the statutory language of Section 402(d), which forecloses use of the innocent infringer provision only where there is a copyright notice and an infringer has access to that notice. Copyright notice and access are often absent in cases of illegal downloading and therefore, the innocent infringer provision should not be foreclosed when people who download music illegally are not aware they are doing something wrong.
This note also contends that foreclosing the innocent infringer provision to people who download music illegally may result in excessive statutory damage awards violating an infringer’s due process right. Many courts have advanced the proposition that statutory damages should bear relation to the actual damages suffered by a plaintiff. However, copyright statutory damage awards are often excessive, subjecting infringers to tens of thousands of dollars in liability for infringements that result in little to no actual damage to copyright plaintiffs.
Finally, this note contends that because the rights of innocent infringers continue to erode as digital technology advances, the courts and Congress should take steps to provide adequate legal protection for innocent infringers in copyright.