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Re: Settlements


From: Hyman Rosen
Subject: Re: Settlements
Date: Mon, 01 Mar 2010 11:38:46 -0500
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US; rv:1.9.1.5) Gecko/20091204 Thunderbird/3.0

On 3/1/2010 4:57 AM, David Kastrup wrote:
Hyman Rosen<address@hidden>  writes:
Having a copyright notice attached to the work defeats such a claim.
No, that has nothing to do with it.

Wrong. 17 USC 401(d) says:
<http://www.copyright.gov/title17/92chap4.html#401>
    (d) Evidentiary Weight of Notice. — If a notice of copyright
    in the form and position specified by this section appears on
    the published copy or copies to which a defendant in a copyright
    infringement suit had access, then no weight shall be given to
    such a defendant's interposition of a defense based on innocent
    infringement in mitigation of actual or statutory damages,
    except as provided in the last sentence of section 504(c)(2).

(The exception isn't relevant here.) And the Fifth Circuit just
decided that "had access" means that a copy with copyright notice
exists and is generally available, and it is not necessary to show
that the defendant saw and was aware of such a notice, for the
innocent infringer defense to be disallowed.
<http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/maverick_harper_100225FifthCirDecis.pdf>


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