RE: Negligence as defense to infringement

No case law contributions. But the defense of innocent infringement is always available except when the allegedly infringed item was clearly marked with a proper copyright notice. Similarly, I doubt that the extra damages associated with willful infringement would be awarded in such a case. "Willful infringement" damages are comparatively rare in any event, and are generally seen in cases where the infringer was already on notice or in the most egregious instances of piracy or counterfeiting.

By the way, the current version of the Copyright Act no longer refers to "innocent infringement" as a basis for reduced statutory damages. Rather, it speaks of instances in which the accused infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." 17 USC 504(c)(2). Too bad the "and" isn't an "or"; but I still think the "oops, we goofed" defense, in the case you describe, stands a reasonable chance of reducing the statutories.

I wonder, though, how such a case gets into court in the first place? Most copyright infringement plaintiffs send a demand letter first; and in this case, the recipient of the demand might have said "oops, we goofed" right out of the starting gate, and the parties might have agreed on some compensation, avoiding the cost of a lawsuit altogether. Or so it seems to me. But of course I don't know the whole story.

Robert C. Cumbow
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-----Original Message-----
From: Kevin Grierson [mailto:kgrierson[_at_]wilsav.com] Sent: Wednesday, April 16, 2003 3:00 PM
To: cni-copyright[_at_]cni.org
Cc: Robert Cumbow
Subject: Negligence as defense to infringement

Is anyone aware of any case law that deals with the "we goofed" defense to copyright infringement?

Consider the following hypothetical:

Publisher uses various works in its publications and generally uses stock photos or obtains permission from a copyright owner. Publisher's new employee, not properly trained, uses photos that are not stock photos in a commercial project without the copyright owners' permission.

Assume that Employee had no "bad intent" in the sense that he/she meant to infringe, but Publisher's failure to train indisputably caused the infringement.

Question: Can publisher show innocent infringement to reduce statutory damages? In the alternative, can Publisher assert that it was merely negligent as a defense to a claim of willful infringement? There's a lot of discussion of what level of intent is required to show bad faith, but there's not much I've been able to find involving "inadvertant" infringements that could have been avoided if the infringer were not negligent in its screening procedures.

It seems, on the one hand, that a court would be inclined to be lenient with an infringer that generally obeys copyright laws in its business; on the other hand, it strikes me that the "you ought to know better" principle might apply, too. Any thoughts/case law?

Thanks,

Kevin Grierson

Kevin W. Grierson
Willcox & Savage, P.C.
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