Justice Alito Says High Court Should Have Addressed Question of Copyright Notices Online

Justice Samuel Alito told his colleagues last week that they missed a rare opportunity to clarify copyright law in the digital age when they declined to hear a case concerning the question of when an individual is sufficiently notified of a musical work's rights status.

The case, Whitney Harper v. Maverick Recording Company et al, concerned a 15-year-old girl who argued that she shouldn't be subject to the regular rate of statutory damages for copyright infringement because she didn't know that she was infringing copyrights. She had said that she thought file-sharing was the same thing as listening to music that was streaming across the internet.

Statutory damages range from a minimum of $750 per work infringed to a maximum of $30,000. If a defendant can prove that they are an "innocent infringer," the minimum damage amount is reduced to $200 per work infringed.

A federal district court agreed with Harper and lowered the damages that she was obligated to pay, but the Fifth Circuit Court of Appeals said that Harper couldn't use that defense because the physical manifestations of the tunes had copyright notices on them.

"There is a strong argument that [existing law] does not apply in a case involving the downloading of digital music files," Alito wrote in his dissent. "This provision was adopted in 1988, well before digital music files became available on the internet."

Alito argued that the court of appeals erred in reasoning that it is a matter of settled law that it was enough for tunes' physical manifestations, such as CDs, to have copyright notices if the accussed infringers had never seen the CDs.

"Although there are now no conflicting Circuit decisions, I would grant review in this case because not many cases presenting this issue are likely to reach the Court of Appeals," he wrote.

Both the case and the dissent are noteworthy because media of all types are moving into "the cloud," online, and it will be increasingly difficult for individuals to tell how their media is being transported or stored, and it is questionable as to whether some of them would ever see a physical disc with a copyright notice on it.