Intellectual Property | Copyright Infringement | Technology | Software

What is “innocent” copyright infringement?

Mar 26th, 2016 | By | Category: Copyright Litigation

Copyright Law Basics – “I made an honest mistake” defense

BSA software defense lawyer


As a litigation attorney we have handled all kinds of intellectual property disputes, from trademark bully cases to software infringement disputes.  One of the main issues in copyright cases is defining whether or not there was “willful” infringement.  In many cases the business owner (or individual) simply didn’t realize there was unauthorized copies of the copyrighted work, whether the subject of the scuffle is art, photographs on a website, videos, comics, video games, or software.  This blog discusses what happens when the Defendant in a case (or business owner who receives an audit letter alleging piracy of products such as Microsoft Office, Windows, Autodesk Autocad, Adobe or other products), had no clue that wrongful conduct was taking place by themselves, or their employees and staff.

Is “Innocent Intent” a Defense to Copyright Infringement?

The first thing to think about before turning to the question of defenses is WHAT IS COPYRIGHT INFRINGEMENT?  The short answer was addressed by one federal court case which noted:

Not all copying, however, is copyright infringement. To establish infringement, two elements must be proven:
(1) ownership of a valid copyright,
(2) copying of constituent elements of the work that are original.
See Harper & Row, 471 U.S., at 548, 105 S.Ct., at 2224. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991)

As you can probably see, there is no requirements that the copyright or infringement be “intentional” or “willingly” or even “knowingly.”  In other words, unlike what happens in CRIMINAL LAW, a “guilty mindset” is not one of the elements of copyright infringement that must be proven.  It’s not part of the definition.

So that brings us to the question of whether “innocent” infringement is a defense to copyright infringement including software piracy.

This “defense” is explained in once case, and as you can see:

“Innocent intent generally is not a defense to copyright infringement, and injunctions may be issued without a showing of willful or deliberate infringement.” See Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870, 878 (3d Cir.1982). There is, however, some authority for the proposition that a court may consider a copyright infringer’s innocent intent, as well as potential harm to the public, when fashioning the remedy for infringement. See Cadence Design Systems, Inc. v. Avant! Corp., 125 F.3d 824, 829 (9th Cir.1997); Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir.1988).  See CyberMedia, Inc. v. Symantec Corp., 19 F. Supp. 2d 1070, 1079 (N.D. Cal. 1998).
As this makes fairly clear, having an innocent or good faith explanation for infringing the copyrighted goods of another person or company is not a surefire way to have a case dismiss, (i.e. it will not stop the Plaintiff from seeking or being able to obtain an injunction), the judge may consider the mindset and intent of an infringer when it comes time to fashion a remedy for infringement.

In looking at the Model Civ. Jury Instr. 9th Cir. 17.26 (2007), Model Civ. Jury Instr. 9th Cir. 17.26 (2007), “An infringement is considered innocent when the defendant has proved both of the following elements by a preponderance of the evidence:

1. the defendant was not aware that [his] [her] [its] acts constituted infringement of the copyright; and
2. the defendant had no reason to believe that [his] [her] [its] acts constituted an infringement of the copyright

As the jury instructions note the BURDEN OF PROOF is on the Defendant to show the innocence of their conduct.

How this plays out in real life copyright cases?

The Plaintiff (or a large software publisher in BSA or SIIA audits), will be pushing hard to try to establish that the Defendant (or business owner) was engaged in “willful” conduct, while the Defendant will be trying to limit their legal liability by fighting hard to show any illegal copying, reproduction, distribution, etc., was merely innocent and large monetary damages should not attach.  This is basically how the fight goes.  So as your copyright counsel, we will help you explore all the relevant aspects of your case in order to steer the facts into innocent, as opposed to willful misconduct.  If we represent a Plaintiff or software company, of course the opposite is true.

If the defense applies, must the judge reduce the damages?

Not necessarily.  At times, the $200 minimum statutory damage award may apply, but the judge is NOT required to keep it to this low level as noted in another federal case inLos Angeles News Serv. v. Tullo, 973 F.2d 791, 800 (9th Cir. 1992) which held:
“AVRS claims that because it had a good faith belief in the legality of copying the newscasts containing LANS’s copyrighted material, the district court erred by awarding more than minimal damages. AVRS relies on 17 U.S.C. § 504(c)(2), which provides that “in a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” The district court did not find AVRS “had no reason to believe” its acts did not constitute infringement. Even if the court had so found, § 504(c)(2) does not mandate a nominal award. On this record, the district court did not abuse its discretion by declining to reduce the award.”
So although you always want to fight for the innocence if you are the Defendant, this is not the same as saying you will only face minimal damages for infringement.

Contact us to speak with a lawyer

If you are facing a copyright infringement cease and desist letter, arbitration demand, software audit with BSA, SIIA, Autodesk or Adobe, or dealing with other claims of piracy of games, videos, photos, comics, videos, or other copyrighted works, contact us for a free initial consultation.  We offer flat rate legal fees for many non-litigation cases, and tenacious legal representation in all cases.  Call us at (877) 276-5084.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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