Brad R. Newberg, Reed Smith LLP
It has been a busy month for the Supreme Court not tackling copyright issues. On November 29, 2010, the Court denied certiorari in two copyright cases, Harper v. Maverick Recording Co., No. 10-94, and Bryant v. Media Right Productions, No. 10-415. Then, on December 13, it announced that no decision would be issued in Costco Wholesale Corp. v. Omega, S.A., No. 08-1423, due to a 4-4 split (Justice Kagan was recused). Along with the Court’s decision back in March to avoid the Section 411 registration/application issue in Reed Elsevier, Inc. v. Muchnick, 2010 will end with the Supreme Court having missed some opportunities to clarify parts of the Copyright Act that have real-world ramifications for copyright owners, users, and legal practitioners.
That is not to say that the Court should have taken every opportunity. The denial of certiorari in Harper does indeed make sense. In Harper, a 16-year-old girl infringed the respondents’ copyrights by digitally sharing 544 sound recordings without permission. After winning on liability, the record labels asked for the typical statutory minimum of $750 per work infringed. Harper, however, successfully argued to the district court that she should be subject to a lower minimum of $200 per work, which comes into play for “innocent infringers” under 17 U.S.C. § 504, who did not know and “had no reason to believe” that their acts constituted infringement. Continue reading