Re: Innocent/willful infringement

From: <ArborLaw[_at_]aol.com>
Date: Wed, 30 Oct 1996 18:54:09 -0500

Mark Lemley postulates 5 hypothetical "innocent" or un-willful forms of infringement:

> 1) I copy a work of Shakespeare from a 1926 text; unbeknownst
> to me, the publisher has altered the work to detect copying, and
> introduced copyrightable expression in the process.
>
> 2) I copy the Dead Sea Scrolls, and am sued by the descendent
> of whoever wrote them in the first place. I am quite surprised
> to find that US copyright protection still subsists.
>
> 3) I copy a movie I know without a doubt is in the public
> domain, but (because I don't regularly read the Federal
> Register) I am unaware that copyright in the movie has been
> "restored" under 104A.
>
> 4) I license the work from the "copyright owner," who was
> assigned the rights by the original "owner", who [unbeknownst to
> me or the "copyright owner"] stole it from someone else. [Only
> the most incredible parts of this example are true -- see Lipton
> v. Nature Co., 2d Cir. 1995]
>
> 5) My personal favorite: I follow the general rule, absolutely
> observed in my industry and by everyone I know, and which I as a
> nonlawyer would swear was law, that it's always OK to copy less
> than 10 seconds from a song [or 100 words from a book, or a
> musical composition provided you change every eighth note, or
> less than 30% of the source code, or any of the other pervasive
> copyright myths].

Ignorance of the law is not going to make anyone innocent of infringement in #3 or #5. #4 is common enough to recommend that all copyright title transfers includes reps, warranties and indemnifications, as in RE transactions. Section 406(a) makes it hard to be "innocent" under the facts of #4 because you can only rely on the ownership listed in a copyright notice if there is no registration or recordation. To my mind that means there is an affirmative duty to search. Interesting related question: is there title insurance available for transfers of intellectual property? I agree that #1 and #2 are a problem. The publisher in #1 is no doubt at least claiming a copyright in the layout and placement of the page numbers.... Nothing I can read in US law prepares me for the outcome suggested in #2.

Ultimately though under US case law willfulness is a tricky concept and a different reading is applied for determining the applicability of statutory damages than for determining other things, eg, allowable offsets. Nimmer supports the view that willfulness and innocence are both exceptional considerations and that an infringement may fit under neither.

Carol Shepherd
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==--====-==-=-=-==--=--====--=-=-=-====---===-=-=-====---===---= Received on Wed Oct 30 1996 - 23:59:59 GMT