Washington Journal of Law, Technology & Arts


Colin Conerton


Over the past decade, the music industry has suffered unprecedented piracy and digital music has become increasingly prevalent on illegal websites. In response, the Recording Industry Association of America (RIAA) has filed lawsuits against many alleged copyright infringers who have illegally downloaded music from the Internet. A few of these alleged infringers, in an effort to reduce damages, claimed they were “innocent infringers.” Several courts ruled that the innocent infringer defense did not apply, based on 17 U.S.C. § 402(d), which precludes the defense if proper copyright notice appears on “phonorecords” (e.g., compact discs). The Supreme Court denied certiorari in one such case, Harper v. Maverick Recording Co., but Justice Samuel Alito filed a dissent, arguing that certiorari should have been granted to address whether notice published on phonorecords applies to copyright infringement cases involving music downloaded from the Internet. Justice Alito’s dissent raises an important question: should the innocent infringer defense be unavailable as a matter of law in music downloading cases if copyright notice is available on physical media to which the downloaders may never have had access? This Article explores this issue by examining Justice Alito’s dissent and considering whether the Court should address the applicability of § 402(d) in music downloading cases.

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