Advanced Copyright Issues on the Internet - Fenwick & West LLP

under the provisions of Section 402(d), which provides that if a valid notice of copyright appearson the phonorecords to which a defendant had access, then no weight shall be given to thedefendant’s interposition of a defense based on innocent infringement in mitigation of actual orstatutory damages. 188 Gonzalez sought to avoid Section 402(d) by arguing that there were nocopyright notices on the data she downloaded. The court rejected this argument: “Shedownloaded data rather than discs, and the data lacked copyright notices, but the statutoryquestion is whether ‘access’ to legitimate works was available rather than whether infringersearlier in the chain attached copyright notices to the pirated works. Gonzalez readily could havelearned, had she inquired, that the music was under copyright.” 189(b) Columbia Pictures v. BunnellIn Columbia Pictures Industries, Inc. v. Bunnell, 190 the court entered judgment againstdefendant Valence Media LLC, operator of the web site at www.torrentspy.com, for willfulinducement of copyright infringement, contributory copyright infringement, and vicariouscopyright infringement. The court awarded the plaintiffs statutory damages of $30,000 perinfringement for each of 3,699 infringements shown, for a total judgment of $110,970,000. Thecourt also issued a permanent injunction enjoining the defendants from encouraging, inducing, orknowingly contributing to the reproduction, download, distribution, upload, or publicperformance or display of any copyrighted work at issue, and from making available forreproduction, download, distribution, upload, or public performance or display any such work. 191(c) Sony BMG Music Entertainment v. TenenbaumIn Sony BMG Music Entertainment v. Tenenbaum, 192 the court rejected a broadside fairuse defense for the file-sharing by a college sophomore of 30 copyrighted songs belonging to theplaintiffs. Describing the defense raised by the defendant’s counsel as “truly chaotic,” 193 thecourt noted that it represented a version of fair use so broad that it would excuse all file sharingfor private enjoyment. As the court described counsel’s defense, “a defendant just needs to showthat he did not make money from the files he downloaded or distributed – i.e., that his use was‘non-commercial’ – in order to put his fair use defense before a jury. Beyond that threshold, the188189190191192193Id. at 891-92.Id. at 892. Gonzalez also challenged the district court’s award of the $750 amount on summary judgment,arguing that the choice of amount is a question for the jury. The Seventh Circuit noted that, although a suit forstatutory damages under Section 504(c) is a suit at law to which the seventh amendment applies, this does notmean that a jury must resolve every dispute. When there are no disputes of material fact, a court may entersummary judgment without transgressing the Constitution. The court noted that Gonzalez had argued for theminimum amount of $750 per song and the plaintiffs had been content with that amount, which the districtcourt then awarded on summary judgment. Id.2008 U.S. Dist. LEXIS 63227 (C.D. Cal. July 10, 2008).Id. at *1-3.672 F. Supp. 2d 217 (D. Mass. 2009).Id. at 220.- 58 -