Drake IP Roundtable 2013: Tonya Evans: Safe harbor for the innocent infringer in the digital age

Liveblogged from Drake IP Roundtable 2013.

Tonya Evans notes that copyright has always limited remedies against innocent infringers, but that this is more difficult in the digital age. Evans is particularly concerned about how users are deemed to know that acts are infringing – it is deemed adequate notice if there are copyright notices on physical copies that are actually available, even if the user never came across a physical version. There are many circumstances where people may have a good faith belief that their use is non-infringing or lack sufficient knowledge of the infringement. For example, where people copy and paste from a blog post which later turns out to be infringing; they had no knowledge that their acts were infringing. There is also a category of users who mistakenly believe that their use will be ‘tolerated’, like Youtube users who have grown accustomed to a norm that they will not be exposed to liability for noncommercial uses. This is outside of the scope of traditional innocent infringement, but Evans is interested in how the concept of innocent infringement might be expanded to also include this ‘mea culpa’ behaviour.

Evans proposes a potential innocent infringer safe harbour that would limit remedies to a maximum of $200 damages and injunctive relief. The safe harbour would be limited in the same way as current 512 language: actual knowledge, constructive knowledge, no direct financial benefit, and an expeditious notice and takedown procedure. So it’s not quite a safe harbour, because there’s still the potential for damage awards – more a ‘safer harbour’.

Q: What obligations should users have to do due diligence?

A: Such a requirement would be difficult for pure innocent infringers. They don’t know what they don’t know (unknown unknowns). With respect to the ‘mea culpa’ infringer, there may be more responsibility, because their mental state is different – they know it is protected or likely protected, but they have a good faith belief that an exception or other factor applies. Maybe there’s scope for these actors to have an obligation to do some due diligence?

Q: Isn’t there a problem when we also consider the Copyright Alert System and other campaigns to educate people about infringement – doesn’t this limit the scope of innocent infringement?

A: Have to deal with this in more detail, but still feels like there is some space for innocent infringement.

Follow up, comment: The proposed system could go two ways. It could become a transactional system, a simple notice and takedown mechanism which provides an effective way for copyright owners to limit damage. Or, the scope of the safe harbour could be narrowed substantially by increasing education and notice campaigns.

Q: Mistake of law or mistake of fact?

A: For the accidental infringer, it’s a mistake of fact; for others with a mistaken belief, it’s a mistake of law.

Comment: Seen in the right light, this proposal could be vulnerable to criticisms that it is a hidden formality, which requires copyright owners to send out notice before their rights are enforceable. This coudl be problematic under Berne.