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Innocent infringer defense?

January 8, 2017

 

 

   I was speaking with a colleague about issues with hiring third-parties to create content, and he mentioned an innocent infringer "defense" to copyright infringement.

     There are two innocent infringer "defenses".

     The first innocent infringer defense concerns copyrighted works (1) from which the copyright notice was omitted and (2) that were publicly distributed under the authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988 (or March 1, 1989). Under this "defense", if an innocent infringer proves that they were misled by the missing copyright notice, then the innocent infringer cannot be found liable for actual or statutory damages for any infringing acts committed before receiving actual notice that the work is registered. 17 U.S.C. 405(b). Once notified of the registration, an infringing party cannot claim be to innocent, and they cannot continue to use the registered work without proper compensation.

     The second innocent infringer defense concerns awards of statutory damages. Although called a defense, it is not a defense to liability but rather a limitation on damages. By asserting this defense, a court in its discretion may reduce the amount of statutory damages to a sum of not less than $200 where the infringer proves that (1) he was not aware that the material was copyrighted and (2) had no reason to believe that he was committing copyright infringement. 17 U.S.C. 504(c)(2).

     As a copyright holder, the simplest way to defeat both of these "defenses" is to ensure that all copyrighted works bear an appropriate copyright notice.


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