Copyright Corner

A persistent myth in the world of copyright law is that of the innocent infringer.  This particular myth takes two forms, both of which will be addressed in this post.  The first is the myth of a complete defense, in that if you didn’t know you were infringing someone’s copyright, you can’t be found liable.  The second is a partial defense, in that if you didn’t know you were infringing someone’s copyright, although you may be found liable, you won’t have to pay any damages.

Neither of these is correct.  Where did this myth come from and why does it persist? This is best answered by looking at the history of United States copyright law.  Let’s take a trip in the copyright time machine (CTM)!

The first stop is in 1790.  Back then, being an innocent infringer meant you were not liable for infringement.  The Copyright Act of 1790 required that an infringer be “knowing”[1] with regards to the copyright status of the work.  There was actually a mens rea[2] component to copyright infringement.  Not only would you not have had to pay any damages, but you had not actually committed copyright infringement in the first place.  Which is good, because the statute required that “offenders shall… forfeit and pay the sum of fifty cents for every sheet which shall be found in his or their possession”[3].  Translated into 2015 dollars, that $0.50 could be as much as $47,500[4] per page! This protection afforded innocent infringers was incredibly valuable.

Unfortunately for innocent infringers, those protections have been stripped away over the ensuing versions of United States copyright law.  Jumping back in the CTM, we can skip ahead to 1909, a year of major revision in U.S. copyright law.  The Copyright Act of 1909 removed the “knowing” requirement, making copyright infringement a strict liability offense.  This meant that if someone made an illegal use of a protected work, they had infringed copyright.  Their mental state was irrelevant and innocent infringement was no longer a defense to copyright infringement.  This was the end of innocent infringement as a total defense to liability for copyright infringement.  The 1909 Act did, however, prevent defendants from having to pay any damages if they could show that they were an innocent infringer who was “misled by the omission of the [copyright] notice”[5].  So in that very specific instance of innocent copyright infringement, a defendant could avoid having to pay damages.

Hopping back into the CTM, let’s fast forward to 1989 and the current version of United States copyright law.  Here, we have the Copyright Act of 1976[6], as influenced by the Berne Convention[7].  Copyright infringement is still a strict liability offense under this version of U.S. copyright law, so innocent infringement is no defense to liability.  It’s also harder to avoid paying some kind of monetary award if an individual is found liable.  Yet, innocent infringement does provide a small sliver of relief for some defendants under the 1976 Act.

The first is for an infringer who “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright”[8].  In this instance, a “court in its discretion may reduce the award of statutory damages to a sum of not less than $200”[9].  That might sound great, but let’s look a little more closely.  First, a defendant bears the burden to prove that they were not aware that their work was infringing copyright.  Second, even if they meet that burden, the court still has discretion in reducing damages.  This means the court may not reduce damages, even if the defendant proves the infringement was innocent.  Third, damages are only reduced, not eliminated completely.  Fourth, and finally, this is only an option if the plaintiff in the case chooses to be awarded pre-defined statutory damages, as opposed to actual damages and profits[10]. To add insult to this injury, a defendant may still be on the hook for the plaintiff’s court costs and attorney’s fees[11].  These fees can amount to hundreds of thousands of dollars, if not more.  For example, the attorneys who successfully argued that the happy birthday song is not protected by copyright were awarded over four million dollars in fees[12].

The second is for an infringer who “believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment … or (ii) a public broadcasting entity”[13] or an employee of a public broadcasting entity.  If an infringer falls into one of those specific employment categories and reasonably believed that their use was a fair use, then no damages will be assessed.  Of course, just like in the first example, the infringer could still be liable for paying the plaintiff’s court costs and attorney’s fees.

Today, innocent infringement is no longer a defense in a copyright infringement case, and even an unwitting infringer could be liable for what might be extremely high court costs and attorney fees.  Innocent infringement, as a defense to liability or a method of obtaining complete relief from liability for damages, no longer exists and we have come a long way since 1790.  Do you think these changes are an improvement?  Leave a comment and let us know how you feel about the treatment of “innocent” infringers in United States copyright law!

Please visit the other post in our series – If there’s no (c), is it copyrighted?

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By Marley C. Nelson, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Copyright Act of 1790, 17 U.S.C. §2 (1790).

[2] “Mens rea” means guilty mind.  In order to be found guilty of many crimes, you must commit an illegal act (e.g. copying someone else’s copyright protected work) while having a certain level of intent to do so (e.g. knowing the work is protected by copyright).

[3] Copyright Act of 1790, 17 U.S.C. §2 (1790).

[4] Samuel H. Williamson, “Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1774 to present,” MeasuringWorth, 2016.  Accessed via https://www.measuringworth.com/uscompare/relativevalue.php on 08/31/2016.

[5] Copyright Act of 1909, 17 U.S.C. §20 (1909).

[6] Copyright Act of 1976, 17 U.S.C. §1 (1976).

[7] The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853.  Accessible at http://uscode.house.gov/statutes/pl/100/568.pdf

[8] Copyright Act of 1976, 17 U.S.C. §504(c)(2) (1976).

[9] Copyright Act of 1976, 17 U.S.C. §504(c)(2) (1976).

[10] See, generally, Copyright Act of 1976, 17 U.S.C. §504 (1976).

[11] Copyright Act of 1976, 17 U.S.C. §505 (1976).

[12] See, e.g., Andrew Blake, Attorneys awarded $4.6 million over ‘Happy Birthday’ copyright claim, Washington Times August 19, 2016.  Accessed via http://www.washingtontimes.com/news/2016/aug/19/attorneys-awarded-46-million-over-happy-birthday-c/.

[13] Copyright Act of 1976, 17 U.S.C. §504(c)(2) (1976).