Maverick Recording Co. v. Harper

• Decision Date: 05 February 2010
• Docket Number: No. 08-51194.,08-51194.
• Citation: 598 F.3d 193
• Parties: MAVERICK RECORDING COMPANY, A California Joint Venture; UMG Recordings, Inc., A Delaware Corporation; Arista Records LLC, A Delaware Limited Liability Company; Warner Brothers Records, Inc., A Delaware Corporation; Sony BMG Music Entertainment, A Delaware General Partnership, Plaintiffs-Appellees-Cross-Appellants, V. Whitney HARPER, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

598 F.3d 193

MAVERICK RECORDING COMPANY, A California Joint Venture; UMG Recordings, Inc., A Delaware Corporation; Arista Records LLC, A Delaware Limited Liability Company; Warner Brothers Records, Inc., A Delaware Corporation; Sony BMG Music Entertainment, A Delaware General Partnership, Plaintiffs-Appellees-Cross-Appellants, V. Whitney HARPER, Defendant-Appellant-Cross-Appellee.

No. 08-51194.

United States Court of Appeals Fifth Circuit.

Date : February. 25, 2010.

Stacy R. Obenhaus, Gardere, Wynne Sewell, L.L.P., Dallas, TX, Andrew B Mohraz, Holme, Roberts & Owen, LLP Denver, CO, for Plaintiffs-Apellees CrossAppellants.

Timothy M. Reynolds (argued), Holme Roberts & Owen, LLP, Boulder, CO, for Maverick Recording Co.

Donald Scott Mackenzie (argued), Dallas, TX, for Harper.

Appeals from the United States District Court for the Western District of Texas.

Before DAVIS, CLEMENT and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Ruling on cross-motions for summary judgment, the district court found that appellant Whitney Harper infringed copyrights held by a consortium of record companies in 37 sound recordings. It also found that whether Harper was an "innocent infringer" under 17 U.S.C. § 504(c)(2) was a question for the jury. On Plaintiffs' motion, the court entered a final judgment against Harper in the amount of $200 per infringed work, the minimum amount that could be awarded for innocent infringe ment. Harper appealed and Plaintiffs cross-appealed. We affirm the district court's finding of copyright infringement but reverse its conclusion that Harper could press the "innocent infringer" defense.

FACTS AND PROCEEDINGS

In June 2004, MediaSentry, a company retained by Plaintiffs to investigate the infringement of their copyrights over the Internet, identified an individual using a file-sharing program to share 544 digital audio files with other users of a peer-topeer network. The shared audio files included a number of Plaintiffs' copyrighted sound recordings. By tracing the user's Internet protocol address, Plaintiffs ultimately identified Harper as the individual responsible for the file sharing.

To ensure that each of the 544 audio files was a downloadable file, MediaSentry initiated a download of the entire group. The company captured screen shots showing all of the files that Harper was sharing. It also captured the metadata associated with each file, which included the name of the artist and song. This information allowed Plaintiffs to identify those sound recordings on which they held a copyright. MediaSentry fully downloaded six of the audio files from Harper's "shared folder." Subsequent discovery indicated that Harper had downloaded all of the files from the Internet to the computer without paying for them, and that she had not copied, or "ripped, " any of the songs from compact discs that she had bought legally.

During discovery, Plaintiffs examined Harper's computer. The examination showed that its operating system had been reinstalled in 2005. As a result, most of the files present on the computer in 2004 when MediaSentry performed its investigation, had been overwritten. The foren-sic examination did show that three filesharing programs had been installed and used on the computer, including a program known as LimeWire, which had been used after the operating system was reinstalled. It also revealed a new cache of approximately 700 recordings downloaded since the reinstallation. Fifteen of the copyrights that Plaintiffs' second amended complaint alleged that Harper infringed came from this newly discovered cache.

In August 2008, the district court granted Plaintiffs' motion for summary judgment on their copyright claims for 37 audio files. By agreement of the parties, the court also entered an injunction against Harper.

The district court denied Plaintiffs' request for statutory damages. Plaintiffs had requested the minimum damages of $750 per infringed work set forth in § 504(c)(1). Harper asserted that her infringement was "innocent" under § 504(c)(2), which provides that "where the infringer sustains the burden of proving... that [she] was not aware and had no reason to believe that... her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." Harper averred that she thought her actions were equivalent to listening to an Internet radio station. The district court found that whether her infringement was "innocent" presented a disputed issue of material fact.

The district court denied each party's motion for reconsideration. In doing so, it clarified its finding that Harper infringed Plaintiffs' exclusive rights to both reproduce and distribute the 37 songs on which they held a copyright. Reserving the right to appeal the district court's legal conclusion on the innocent infringer issue if Harper appealed, Plaintiffs moved for entry of judgment in the amount of $200 for each infringed work—the minimum amount due from an innocent infringer. The court granted Plaintiffs' motion and entered judgment against Harper. Harper appealed, and Plaintiffs cross-appealed.

Harper argues that, for 31 of the 37 recordings, there was insufficient evidence of infringement because the audio files were not found on her computer. She also contends that she did not infringe Plaintiffs' copyrights by "making available" the audio files and that the Copyright Act's statutory damages scheme violates due process. Plaintiffs argue that the district court erred by failing to rule out the innocent infringer defense as a matter of law.

STANDARD OF REVIEW

We review a grant of summary judgment de novo and apply the same legal standard as the district court. Miller v. Gorski Wladyslaw Estate, 547 F.3d 273, 277 (5th Cir.2008). Summary judgment should be rendered if the record demonstrates that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[A]ll facts and evidence must be taken in the light most favorable to the non-movant." LeMaire v. La, Dep't of Tramp. & Dev., 480 F.3d 383, 387 (5th Cir.2007).

DISCUSSION

A. Sufficiency of the Evidence

Harper argues that Plaintiffs did not present sufficient evidence for the district court to find that 31 of the 37¹ audiofiles at issue existed on her computer. She does not contest the existence of the six audio files that MediaSentry downloaded in full over the peer-to-peer file-sharing network in 2004. She also cannot contest the existence of the 15 audio files that were part of the cache of approximately 700 songs discovered on Harper's hard drive in 2008. The issue, then, is whether Plaintiffs made an undisputed showing that Harper had downloaded the remaining 16 audio files.

Harper's argument relies on the computer forensic expert's inability to recover complete copies of the 16 contested audio files when the expert searched her computer's hard drive in 2008. That inability was due to the 2005 reinstallation of the computer's operating system, which overwrote most of the audio files present in 2004. Harper asserts that the 2008 forensic evidence is inconclusive and that a jury could find that the file remnants discovered in the 2008 examination were something other than downloaded audio files.

Harper's argument ignores the voluminous and undisputed evidence that she downloaded and shared the 16 contested audio files. MediaSentry's screen shots of Harper's "shared folder" indicate that she was sharing the contested audio files from her computer in 2004. MediaSentry also initiated downloads of the audio files to verify their existence and recovered metadata from which it could identify the artist and song title of each file.

Harper submitted no evidence that calls into question Plaintiffs' showing that she had downloaded the audio files. In her deposition, she did not deny that she had downloaded them. She also testified that she had not copied any of the recordings to her computer from compact discs that she purchased, and she acknowledged using a peer-to-peer file-sharing network and stated that she recognized "some of the songs... as music I listened to and may have downloaded to the computer."

The uncontroverted evidence is more than sufficient to compel a finding that Harper had downloaded the files: there was no evidence from which a fact-finder could draw a reasonable inference that Harper had not downloaded them or that they were something other than audio files. Harper "cannot defeat a motion for summary judgment merely by claiming some metaphysical doubt as to the material facts." Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 295 (5th Cir.2007) (quotation omitted). The district court properly rejected Harper's argument that the evidence of infringement was insufficient.

B. Copyright Infringement

Section 106 of the Copyright Act grants copyright owners the exclusive right "to do and to authorize, " inter alia the reproduction of "the copyrighted work in copies or phonorecords, " the preparation of "derivative works based upon the copyrighted work, " and the distribution of "copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. § 106. Plaintiffs' second amended complaint contains one count, for copyright infringement. Plaintiffs alleged that Harper had violated their copyrights in two ways: first, by reproducing the copyrighted audio files, and second by making them available to others, which Plaintiffs argue is tantamount to "distribution." The district court found that the undisputed evidence showed Harper had done both.

Harper argues that making audio files available to others by placing them in a "shared folder" accessible by users of a peer-to-peer file-sharing network does not constitute "distribution]" under § 106(3). Cf. Elektra Entm't Group, Inc. v. Barker 551 F.Supp.2d 234, 239-47 (...