Under American statutory copyright law, the "innocent infringer" defense is available to individuals being sued for copyright infringement who were unaware they were infringing copyright.
Some American citizens being sued by the Recording Industry Association of America for copyright infringement have previously tried to avail themselves of the defense. Most notable among these was Whitney Harper, whose innocent-infringer defense (she shared songs on Limewire when she was a minor) was upheld at trial level but overturned on appeal.
She then turned to the Supreme Court of the United States.
Unfortunately for Ms. Harper, she's not going to get her chance with the American Supremes:
Unfortunately for Ms. Harper, she's not going to get her chance with the American Supremes:
In September, the justices showed some interest in the case, asking the RIAA to respond to Harper’s appeal. But in the end, Monday’s action by the high court means, for the moment, the Supreme Court will not review any aspect of the RIAA’s five-year litigation campaign targeting individual music file-sharers.This is a fairly important denial of leave for copyright defenders.
It leaves the Fifth Circuit Court's decision against the use of the innocent infringer defense as the highest precedent in American law in this regard. In that ruling, the Fifth Circuit held that even minors could be found liable for copyright violation - regardless of whether or not they understand copyright law - so long as the works in question make their copyright obvious to the user.
In the context of Canadian murky statutory copyright law - so woefully out of date that even the legality of using a VCR is still technically uncertain - the Harper appellate ruling could present an influential, if not binding, precedent.
In the context of Canadian murky statutory copyright law - so woefully out of date that even the legality of using a VCR is still technically uncertain - the Harper appellate ruling could present an influential, if not binding, precedent.
Should the Copyright Act ever be modernized - complete with punitive treatment for infringers of copyright - people who are caught downloading media without permission may be left with a greater uphill battle to fight in the courts.
- Christopher Bird, Toronto
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