Re: [CNI-COPYRIGHT] Negligence as defense to infringement

I do not have any cites handy, but the "innocent infringement" provision for reduced statutory damages is very rarely successful. In the rare instances where it has been applied, the plaintiff has done something that reasonably caused the defendant to believe that the work was in the public domain. As far as I recall, there has never been a case where a party's (or their employee's) ignorance of copyright law was sufficient to obtain the reduced statutory damages. Of course, a fact finder is perfectly able to award the minimum regular statutory damages award of $750 per work infringed if they really believe there was no bad faith involved, and that might not add up to much in the scope of things.

Paul Fakler

Kevin Grierson wrote:

>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 copy
right 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.
>One Commercial Place, Ste. 1800
>Norfolk, Virginia 23510
>
>mailto:kgrierson[_at_]wilsav.com
>ph: 757/628-5603 fx: 757/628-5566
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Received on Fri Apr 18 2003 - 08:39:57 GMT