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What is an “innocent infringer” in a copyright infringement case?

On Behalf of | Mar 2, 2022 | Copyright Infringement |

For many people being named as defendants in BitTorrent copyright lawsuits, there is one very important question: What if I am innocent? What if you didn’t know that what you were doing was copyright infringement? Does that matter at all for how a lawsuit like this will play out?

Having a basic understanding of how the law works in these cases is important for defending yourself against copyright infringement claims.

What do you mean by “innocent”?

In copyright infringement cases, there are two senses of the term “innocent.”

The first definition is that you literally did not stream the copyright protected material.

But there is another important sense of the term “innocent,” in which you did stream the copyrighted material (a movie, song, etc.), but you did not know the material was copyright protected or did not know that the way you were streaming the material was a violation of the copyright holder’s rights.

This is called the “innocent infringer” defense.

Innocence is not a defense against the violation itself

Copyright infringement involves two primary factors: 1.) ownership of a copyright, 2.) and copying the elements of the copyrighted work that are original.

Basically, if there is a copyright on the work, and you copied the work, that is copyright infringement. But the important thing here is that intentionality of the person doing the infringing is not an element of infringement. There is nothing in the rule about “willfully” or “knowingly.” Therefore, being an innocent infringer does not help you avoid being liable to a plaintiff for damages arising from infringement.

Reducing statutory damages

However, being an innocent infringer can reduce your statutory damages.

There are two types of damages in a case like this: Actual damages and statutory damages. Actual damages are pretty much what the name would suggest: an award for the plaintiff close to what it would take to compensate for the actual losses the plaintiff suffered as a result of the infringement.

Then there are statutory damages, which are damages awarded by statute. When it comes to statutory damages, the judge has some discretion in terms of how much a plaintiff is charged. A judge will consider many factors for determining a statutory damage award, and the lack of knowledge and willfulness on the part of the defendant is one of them. Often, when a defendant establishes that he or she is an innocent infringer, the judge will keep the statutory damages closer to the minimum.

How to establish an innocent infringer

So, if establishing yourself as an innocent infringer can significantly reduce the statutory damages you will have to pay, it is important to know how to do so.

You must prove two things to establish yourself as an innocent infringer:

  1. You did not know the work was copyright protected (or that your use was an infringement), and
  2. You had no reason to be aware of it or to look into it

This inquiry is case-specific, very much dependent on your specific circumstances and actions. It is up to the defendant and the defendant’s counsel to establish that the defendant did not know and had no good reason to know.

If you are facing a lawsuit for copyright infringement, it could be important to work with an experienced attorney who can help you establish that you are an innocent infringer in order to reduce the statutory damage awards you will have to pay.