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On Friday, the Seventh Circuit released its opinion in BMG Music v. Cecilia Gonzales. Judge Easterbrook, writing for a unanimous three-judge panel, found that Ms. Gonzales could not avoid the $22,500 judgment against her by the affirmative defense of fair use or that of innocent infringement. In the district court, BMG moved for summary judgment holding that Gonzales was liable for the $750 minimum statutory damages for each of the 30 songs she admits she downloaded, for which she did not own CD copies.

Fair Use. Gonzales argued that her downloads constituted fair use, since she was “just sampling music to determine what she liked enough to buy at retail.” The court rejected this argument, finding that there were plenty of ways for Gonzales to sample music before a purchase other than P2P downloading. These other ways to find music, such as broadcast radio, internet radio, and subscription music services “share the feature of evanescence: if a listener decides not to buy (or stops paying the rental fee), no copy remains behind.” In contrast to these licensed previews, Easterbrook writes, an unlicensed copy “downloaded, played, and retained on one’s hard drive for future use is a direct substitute for a purchased copy—and without the benefit of the license fee paid to [sic] the broadcaster.”

Easterbrook next confronts a common colloquial argument in defense of copyright infringement: that the infringing activity should be free from liability because it “is good advertising for copyright proprietors, expanding the value of their inventory.” To the contrary, the court held that:

Copyright law lets authors make their own decisions about how best to promote their works; copiers such as Gonzalez cannot ask courts (and juries) to second-guess the market and call wholesale copying “fair use” if they think that authors err in understanding their own economic interests or that Congress erred in granting authors the rights in the copyright statute.

That passage seems likely to be cited frequently by plaintiffs in copyright cases where the naive “but I’m really doing them a favor” argument is presented.

Damages. Unlike the fair use argument, which holds broad interest, Gonzales’ damages argument is pretty dry. If you’re not a procedure geek or a copyright geek, please feel free to skip the following.

Gonzales, understandably, wanted to plead her case before a jury; tens of thousands of dollars in damages arising from a few dozen MP3s seems excessive to most people. But BMG was clever. They moved for summary judgment only with regard to the 30 MP3s that Gonzales admitted she downloaded and retained without owning CD copies, and only asked for the $750 minimum in statutory damages for each song. This left the jury with nothing to decide. She admitted she’d copied the songs, leaving only the question of damages, and BMG asked for the smallest damages the jury could lawfully award.

She apparently first argues that, even if $750 is the minimum, the jury should be offered an opportunity to disregard that minimum, but such a verdict would necessarily be set aside by the district court, since there is no power of jury nullification in civil cases, and no right of jury nullification in any case.

Gonzales next argues that she is an “innocent infringer,” and thus eligible for a reduction in statutory damages to only $200 per work under section 504(c)(2) of the Copyright Act. But section 402(d) says that the innocent infringer defense is unavailable if proper copyright notice “appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access.” The MP3s in question carried no copyright notices, but the court found that Gonzales had “access” to CD copies of the songs, which did carry proper copyright notices. The court does not describe how or why this “access” exists, but it apparently finds access in the fact that Gonzales could have gone to the record store and inspected authorized copies. “Gonzalez,” the court found, “readily could have learned, had she inquired, that the music was under copyright.”

I think the court is on shaky ground here. The innocent infringer defense should act as an incentive for copyright owners to place proper copyright notice on copies they distribute, while lessening the punishments for infringers who had no reason to think they were infringing. Perhaps Gonzales’ innocent infringement argument should fail, but not for the reasons the court cites, and almost certainly not without a jury trial. The court finds that Gonzales had access to CD copies of the songs she downloaded — but how? Does Gonzales admit that the CDs were sold in local stores? Did the court take judicial notice of the contents of the racks at Sam Goody? If so, why didn’t Gonzales get a chance to object and show that she did not have access? Further, if “access” in the copyright context now means that someone could have inspected a copy of a work had they inquired, we may find some mighty odd results in cases looking to whether a small-potatoes plaintiff has shown that a big-time movie studio had access to her unsolicited screenplay, or examining whether a technological measure “effectively controls access to a work.” In this case, “the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access” were the MP3s she downloaded, and they bore no notice.

Under the circumstances, a jury should have been be asked to decide whether Gonzales had any reason to believe her acts were infringing. Maybe she did — knowing generally that unauthorized copying is usually infringement and that practically all sound recordings are copyrighted — or maybe she didn’t. Gonzales never possessed the CDs that had proper notice, and, if she really believes she’s engaging in fair use, she shouldn’t be required to conduct an investigation into whether proper notice of copyright appears on authorized copies in order to assert an innocent infringer defense.