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

From: Tyler Ochoa <tochoa[_at_]law.whittier.edu>
Date: Fri, 18 Apr 2003 23:00:23 -0400

" 'Willful' within the meaning of § 504(c)(2) means 'with knowledge that the defendant's conduct constitutes copyright infringement.'" Peer Int'l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1335 n.3 (9th Cir. 1990).... "To refute evidence of willful infringement, [the defendant] must not only establish its good faith belief in the innocence of its conduct, it must also show that it was reasonable in holding that belief." Id. at 1336. [Accord, Columbia Pictures Television v. Krypton Broadcasting, Inc., 106 F.3d 284 (9th Cir. 1997), rev'd on other grounds sub nom. Feltner v. Columbia Pictures Television, 523 U.S. 340 (1989) (right to jury trial on issue of statutory damages).]

As far as I'm aware, the initial definition quoted is accepted in every circuit that has addressed the issue. The second quote makes clear that it is an objective standard of willfulness; however, it also gives the impression that infringement is either willful or innocent. I am of the opinion that "negligence" is neither willful infringement nor innocent infringement; it is a third category that falls in between. This is consistent with the structure of Section 504; a basic range of statutory damages, the maximum of which can be raised for willful infringement (burden on P), the minimum of which can be lowered for innocent infringement (burden on D). There must be something in the middle besides each party failing to meet its burden of proof.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu

>>> kgrierson[_at_]wilsav.com 04/16/03 08:38PM >>>
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.
One Commercial Place, Ste. 1800
Norfolk, Virginia 23510

mailto:kgrierson[_at_]wilsav.com
ph: 757/628-5603 fx: 757/628-5566
http://wilsav.com
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<https://mail2.cni.org/Lists/CNI-COPYRIGHT/> Received on Sat Apr 19 2003 - 07:00:23 GMT