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What is “Accidental” or “Innocent” Copyright Infringement

By John DiGiacomo

Accidental or innocent copyright infringement occurs when copyright protections are violated without specific intent to commit infringement. Copyright law protects original works of authorship and allows the owner to prohibit copying, use, distribution, performance, public display and/or the making of derivative works without permission. Some of the most common circumstances when accidental/innocent copyright infringement happens is when:

  • A person is unaware of copyright law
  • A person believes — rightly or wrongly — that their use of the original work is not infringement — this is often called “fair use” of copyrighted materials or
  • A person misunderstands the license granted by the owner — as, for example, when a website states that an article can be republished but only with attribution

In truth, these legal concepts can be murky and unclear even for copyright infringement defense attorneys and judges handling copyright infringement litigation. For example, whether use of an original work is “fair use” depends on the totality of the factual circumstances surrounding the use including:

  • Purpose of the use — such as informational, satirical, critical or commercial
  • Character of the use — such as educational use
  • Nature of the copyrighted work
  • The audience to whom the work was published by the infringer
  • Amount of the original work used
  • Substantiality of the use
  • Effect on the market or potential market for the original work
  • Whether the use is transformative
  • And more

There are similar legal nuances with respect to other examples of accidental copyright infringement.

The problem, however, is that copyright law places the burden on the alleged infringer to show that the use was not infringement. In a manner of speaking, copyright law is a form of strict liability. To recover for copyright infringement, the copyright owner does not need to prove intentional infringement or any sort of “bad” motive or mental state. The United States Supreme Court held this to be the case in Buck v. Jewell-Lasalle Realty Co., 283 U.S. 191 (US Supreme Court 1931). The court plainly stated that “[i]ntention to infringe is not essential under the [Copyright] Act.” Thus, accidental and/or innocent copyright infringement can be punished just as severely as knowing or reckless infringement.

Further, copyright owners are often over-protective of their rights and sometimes quickly send cease and desist letters for copyright infringement or notices of action under the Digital Millennium Copyright Act before waiting to investigate whether the infringement was accidental or innocent. Copyright owners know that the law favors them and, if they prevail in their copyright infringement litigation, the infringer will be ordered to pay substantial money damages. $150,000 in statutory damages can be awarded PER infringement and the infringer can be required to pay the copyright owner’s attorneys’ fees and court costs. So, a person can end up facing copyright infringement litigation long before the person can demonstrate that the infringement was accidental and/or innocent.

If you have been accused of copyright infringement, you need to contact experienced copyright attorneys for the best legal advice and counsel. We have top-tier copyright infringement defense attorneys here at Revision Legal. Call us at 231-714-0100. We are lawyers specializing in internet law.

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