## Facts

- Record companies used an investigator to detect an IP address offering 544 digital audio files through a peer-to-peer shared folder, including plaintiffs’ copyrighted sound recordings.
- The investigator documented the shared folder with screenshots and metadata and downloaded six files to confirm availability and content.
- Plaintiffs traced the IP address to Whitney Harper, a college student, and sued for infringement of 37 copyrighted sound recordings.
- Discovery indicated Harper obtained the files from the internet without paying and did not create copies from lawfully purchased CDs.
- A later forensic examination showed the computer’s operating system had been reinstalled, overwriting much earlier data, and showed use of multiple file-sharing programs; some of the alleged infringements were tied to a later cache of downloads.
- Harper claimed she believed file-sharing was lawful and that she did not understand copyright protections applied to downloaded music.

## Issues

1. Whether downloading and making plaintiffs’ sound recordings available via peer-to-peer software infringed the exclusive rights protected by 17 U.S.C. § 106.
2. Whether 17 U.S.C. § 402(d) barred Harper from asserting the “innocent infringer” limitation on statutory damages under 17 U.S.C. § 504(c)(2) where the recordings were distributed to the public on CDs bearing proper copyright notice.
3. Whether the district court could reduce statutory damages to $200 per work based on potential innocent infringement.

## Decision

- The Fifth Circuit affirmed summary judgment that Harper infringed plaintiffs’ copyrights in the 37 sound recordings.
- The court reversed the district court’s ruling that Harper could invoke innocent infringement, holding that § 402(d) foreclosed giving any weight to that defense for properly noticed phonorecords.
- The court reversed the $200-per-work statutory damages award that rested on the innocent-infringer reduction and remanded for damages consistent with § 504(c)(1) absent that reduction.

## Legal Principles

- Unauthorized downloading and peer-to-peer “making available” of copyrighted sound recordings can constitute infringement of copyright owners’ exclusive rights under 17 U.S.C. § 106.
- Statutory damages under 17 U.S.C. § 504(c)(1) generally apply per infringed work; the “innocent infringer” reduction in § 504(c)(2) is limited by other provisions.
- Under 17 U.S.C. § 402(d), when a copyright owner has affixed proper notice to published phonorecords, “no weight shall be given” to an innocent-infringer claim, barring the § 504(c)(2) reduction for those works.
- Where § 402(d) applies, an alleged infringer’s subjective belief, age, or claimed lack of understanding does not permit statutory-damages reduction based on innocence.

## Conclusion

The Fifth Circuit held Harper liable for infringement arising from peer-to-peer downloading and sharing of 37 sound recordings and ruled that § 402(d) barred any innocent-infringer reduction because the recordings were published on properly noticed CDs, requiring reversal of the reduced $200-per-work damages award and remand for recalculation under the ordinary statutory-damages framework.


Maverick Recording Co. v. Harper, 598 F.3d 193 (5th Cir. 2010)