Copytraps

Indiana Law Journal

Volumn 84, Issue 1, 2009, Pages 285-330

  Snow, Ned Snow ^a  

^a UNIVERSITY OF ARKANSAS   (United States)

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EID: 62249135192     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (362)

1. The Internet gained public recognition in the mid to late 1990s. See JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET?: ILLUSIONS OF A BORDERLESS WORLD vii (2006). By contrast, the doctrine of strict liability in copyright law traces back to the Statute of Anne. See An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, During the Times Therein Mentioned, 1709, 8 Ann., c. 19 (Eng.) (imposing liability on any "bookseller, printer, or other person whatsoever... [who] shall print, reprint, or import, or cause to be printed, reprinted or imported, any such book... without the consent of the proprietor"). Early colonial copyright laws subsequently adhered to the English copyright model, applying strict liability. See Lyman Ray Patterson, The Statute of Anne: Copyright Misconstrued, 3 HARV. J. ON LEGIS. 223, 223 (1966). The federal copyright acts of 1790, 1870, and 1909 were all strict liability statutes, as is the present Copyright Act. See 17 U.S.C. §§ 101, 106, 501(a) (2006);
2. Dane S. Ciolino & Erin A. Donelon, Questioning Strict Liability in Copyright, 54 RUTGERS L. REV. 351, 355-58 (2002) (describing strict liability of all copyright acts preceding the current one).
3. Courts have applied the doctrine without inhibition. See, e.g., Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198 (1931) ("Intention to infringe is not essential under the [Copyright] Act.");
4. BMG Music v. Gonzalez, 430 F.3d 888, 891-92 (7th Cir. 2005) (finding liability despite innocence argument in context of Internet downloading);
5. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963) ("While there have been some complaints concerning the harshness of the principle of strict liability in copyright law . . . courts have consistently refused to honor the defense of absence of knowledge or intention.");
6. De Acosta v. Brown, 146 F.2d 408, 410-12 (2d Cir. 1944) (relying on the "unanimity of view" that liability is strict in copyright to hold that the "protection accorded literary property would be of little value if... insulation from payment of damages could be secured by a publisher by merely refraining from making inquiry").
7. Cf. Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. 547, 549, 552-56 (1997) (arguing that copyright law is expanding onto the Internet in a way that is leading to undesirable consequences).
8. See Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1372 (N.D. Cal. 1995) (opining that enforcing copyright's strict liability provision as to innocent Internet actors would "hold the entire Internet liable").
9. Cf. Lava Records, LLC v. Ates, No. Civ. A. 05-1314, 2006 WL 1914166, at *1 (W.D. La. July 11, 2006). While he was a high school student, Matt Ates downloaded twenty-five songs through an unauthorized Web site. Id. at *1. Based on the Web site's appearance, Matt believed that he had done no wrong. See Plaintiffs' Memorandum in Support of Their Motion for Summary Judgment Against Defendant Matthew Ates, No. Civ. A. 05-1314, 2006 WL 1914166 (W.D. La. July 11, 2006);
10. Deposition Transcript of Matthew Ates at 20, Lava Records, LLC v. Ates, No. Civ. A. 05-1314,2006 WL 1914166 (W.D. La. July 11, 2006) (on file with author). But Matt had done wrong, so five recording companies asserted their statutory rights to $750 per song. See Lava Records, LLC, 2006 WL 1914166, at *1, *3. Although Matt maintained his innocence, the pro se high school student was no match for the 250-lawyer law firm at summary judgment. Id. at *l-*3. All that mattered was that Matt had downloaded without authorization: infringement had occurred; judgment was automatic. Twenty-five mouse-clicks cost $19,000. Id. at *l-*3. Unsurprisingly, Matt now avoids downloading music. Id. at *l-*3.
11. This Article employs the term "innocent downloader" to mean a person who downloads infringing material from a Web Site under a reasonable but mistaken belief of fact that the material is not infringing.
12. See, e.g., 17 U.S.C. § 501(a) (2006); BMG Music, 430 F.3d at 891-92 (finding liability despite innocence argument);
13. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1294 (D. Utah 1999) (suggesting that Internet users are liable for infringement simply by innocently visiting an infringing Web site).
14. Liability lies regardless of the user's ignorance. See 17 U.S.C. §§ 106, 501(a). Nevertheless, a court may reduce statutory damages to $200 if it finds that the infringer was unaware of the infringement and had no reason to believe he or she was infringing copyright. 17 U.S.C. § 504(c)(2).
15. See, e.g., 17U.S.C. § 106(1) (providing copyright holders exclusive rights to reproduce works); BMG Music, 430 F.3d at 891-92 (imposing strict liability in downloading context);
16. Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995) (stating that unknowing infringement does not excuse copyright liability).
17. Robert Brimley is an example of an Internet user falling victim to a copytrap. While married, raising two children, and serving in the Navy, Robert was accused of illegally downloading six songs. See Elektra Entm't Group Inc. v. Brimley, No. CV205-134, 2006 WL 2367135, at *2 (S.D. Ga. Aug. 15,2006). Arguing pro se, he maintained his innocence. See id., at *2. He did not, however, prevail in court and his innocence cost him over $4000. See id., at *2-*3.
18. A copytrap may arise whenever an Internet user downloads anything. Online pictures, videos, songs, and text all introduce the possibility of virtual entrapment by downloading. See Lemley, supra note 3, at 552-56.
19. SSRN, http://www.ssrn.com.
20. See Ned Snow, Copytraps, 84 IND. L.J. 285, 287 (2009), available at http://ssrn.com/abstract=1019577 (offering manuscript of Copytraps for free download).
21. See 17 U.S.C. § 504(c) (2006).
22. Cf. SSRN User HeadQuarters Registration, htrp://hq.ssrn.com/ Participant.cfm?rectype=add&runct=new (authorizing users to download scholarly articles from the site at no cost).
23. SSRN would not be liable to the author because of the safe harbor protection that the Digital Millennium Copyright Act affords content providers. See Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(c) (2006). Nor would SSRN be liable to the downloader. Copyright law does not provide for indemnification by third parties who have led a defendant to commit copyright infringement. See, e.g., Pure Country Weavers, Inc. v. Bristar, Inc., 410 F. Supp. 2d 439,448 (W.D.N.C. 2006) ("[N]o right of indemnification was affirmatively created (either expressly or implicitly) by Congress in the Copyright Act, and... this is not one of the 'limited situations' in which the Court should formulate federal common law to create such a right."). Furthermore, relief to the downloader through the common law would not be possible unless SSRN acted tortiously in offering the article for download. See id. SSRN reasonably attempts to determine that uploaders are authorized to post articles. See SSRN, https://ssrn.com/ (follow "Submit" link) (requiring uploaders of articles to have copyright authority to post the articles on SSRN). Therefore, it does not seem likely that an action in tort would lie against SSRN. Cf. PROSSER AND KEETON ON TORTS § 32, at 173-75 (William L. Prosser, W. Page Keeton, Dan B. Dobbs, Robert B. Keeton & David G. Owen eds., 5th ed. 1984) (describing reasonable person standard in negligence). Id. § 107, at 741 (outlining scienter requirement for tort of misrepresentation). A claim by the downloader under the Uniform Commercial Code would also fail because downloads are not "goods," and, moreover, SSRN does not sell downloads. See U.C.C. §§ 2-102, 2-103(k), 2-312(1) (2004) (defining scope of U.C.C, defining goods, and requiring contract of sale for warranty of good title to apply);
24. Fink v. DeClassis, 745 F. Supp. 509, 516 (N.D. 111. 1990) (refusing to recognize intellectual property as goods under the U.C.C).
25. See H.R. REP. No. 94-1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,5779 ("[B]y establishing a realistic floor for liability, [the 'innocent infringer'] provision preserves its intended deterrent effect.").
26. See 17 U.S.C. §§ 402(d), 504(c).
27. See Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1554 (9th Cir. 1989) ("Statutory damages are available in order to ... deter infringement.").
28. Cf, Moeffju.net, LegalSounds?, http://moeffju.net/blog/2006/10/23/ legalsounds/ (inquiring whether Web site offering infringing material had authority to offer songs for downloading);
29. Tech Law Advisor, Is allofmp3.com legal?, http://techlawadvisor.com/blog/ 2004/04/is-allofinp3com-legal.html (debating whether Web site offering songs for download was legal).
30. See April Marciszewski, OSU Employee, 15 Students Cited for Illegal Downloads, TULSA WORLD, May 24, 2007, at A7, available at http://www.tulsaworld.com/news/article.aspx?articleIL>= 070524-l-A7-ISZEW07430. Charles Cox, an upstanding employee of the Oklahoma State University, received a letter from a copyright holder demanding $3000 for illegally downloaded nine songs. Id. Cox claimed innocence, but paid the demand. Id. The offer was reasonable considering that he would face a minimum liability of $6750 in court. Id. Since then, Charles is much more hesitant to download from any site. Id.
31. See Jason Straziuso, Lawsuits Deter Some, Not All, Music Downloaders, CRN MAG., Feb. 22, 2004, at 5, available at http://www.crn.eom/it-channel/l 8826346; Interview by David McGuire, Reporter, Washington Post, with Eric Garland, CEO, Big Champagne, in Washington, D.C. (Jan. 22, 2004), available at http://www.washingtonpost.com/wp-dyn/ articles/A36356-2004Jan21 .html [hereinafter Garland Interview] (stating that empirical studies of online tracking company indicate that popularity of file sharing is at all-time high).
32. Cf. Marciszewski, supra note 21 (providing one example).
33. Cf. Straziuso, supra note 22, at 5 (reporting Recording Industry Association of America executive's statement that most people will not download pirated material when they understand the legal consequences for doing so).
34. See, e.g., BMG Music v. Gonzalez, 430 F.3d 888, 891-92 (7th Cir. 2005) (recognizing liability despite downloader's innocence argument);
35. Elektra Entm't Group Inc. v. Brimley, No. CV205-134, 2006 WL 2367135, at *2 (S.D. Ga. Aug. 15, 2006) (denying innocence argument of downloader);
36. Patrick McCartney, RIAA Threatens UC Davis Students with More Lawsuits, CAL. AGGIE, Feb. 8, 2008, at 1, available at http://media.collegepublisher.com/media/paper981/documents/5gv41kzb.pdf.
37. See Jason Schultz, The False Origins of the Induce Act, 32 N. KY. L. REV. 527, 552 (2005) (commenting on the great incentive that copyright's statutory damages provide copyright holders to bring suit).
38. See, e.g., VisualRoute, http://visualroute.visualware.com/index. html (offering software to track IP routing activity).
39. See Marc Fisher, Download Uproar: Record Industry Goes After Personal Use, WASH. POST, Dec. 30, 2007, at M05, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/ 12/28/AR2007122800693 .html.
40. See R. Anthony Reese, The Public Display Right: The Copyright Act's Neglected Solution to the Controversy over RAM "Copies", 2001 U. ILL. L. REV. 83, 126 ("[T]he copyright owner's exclusive right of distribution is a right to distribute ... tangible, physical things.").
41. See Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. 1245, 1255 (2001) ("Copies of copyrighted works can now be distributed in digital form, without the exchange of any physical object, without any title in physical property changing hands, and all indications suggest that this will only increase over time, as computer network capacities increase and compression technologies improve.").
42. See infra Part I.A.2.
43. See infra Part I.A.
44. See infra Part I.B.
45. See infra Part I.B.
46. See infra Part I.C.
47. See infra Part I.C.2.
48. See infra Part II
49. See iw/rα Part II A. 1.
50. See infra Part II.A.2.
51. See infra Part II.B.
52. See infra Part II.C.l.
53. See infra Part II.C.2.
54. See infra Part III.
55. See infra Part III.A.
56. See infra Part III.A-B.
57. See infra Part III.B.
58. See infra Part I.A.
59. See infra Part I.B.
60. See infra Part I.C.
61. See Fid. Nat'l Title Ins. Co. v. Consumer Home Mortgage, Inc., 708 N.Y.S.2d 445, 447 (N. Y. App. Div. 2000) ("Where a loss is caused by the fraud of a third party, in determining the liability as between two innocent parties, the loss should fall on the one who enabled the fraud to be committed.");
62. PROSSER AND KEETON ON TORTS, supra note 16, § 75, at 537 ([0]ne who innocently causes harm should make it good.").
63. PROSSER AND KEETON ON TORTS, supra note 16, § 2, at 9-10 ("Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.").
64. See infra Part I.A.2-3.
65. See H.R. Rep. No. 94-1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,5779 ("[B]y establishing a realistic floor for liability, the [strict liability] provision preserves its intended deterrent effect. .. .");
66. L.A. News Serv. v. Reuters Television Int'l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998) ("[A] wards of statutory damages serve ... punitive purposes ");
67. John Tehranian, Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal, 2005 BYU L. REV. 1201, 1216-17 & 1217 n.61 (commenting on the punitive nature of copyright's statutory damages). Although it is true that one purpose of statutory damages is to compensate copyright holders where the value of a work is difficult to ascertain, that purpose is not exclusive. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1199 (10th Cir. 2005) (observing that one purpose of copyright's statutory damages is to compensate an author where actual damages are difficult to ascertain).
68. S.C. § 504(c) (2006). Damages may be reduced to $200 if the expression is not embodied on a phonorecord. See id. § 412.
69. See, e.g., Apple, iTunes Store, http://www.apple.com/itunes/store.
70. See Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1554 (9th Cir. 1989) ("Statutory damages are available in order to ... deter infringement.");
71. J. Cam Barker, Note, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 TEX. L. REV. 525, 525-26 (2004) (arguing that the minimum statutory-damages award is punitive).
72. See H.R. Rep. No. 94-1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5779 ("[B]y establishing a realistic floor for liability, the [strict liability] provision preserves its intended deterrent effect....").
73. See PROSSER AND KEETON ON TORTS, supra note 16, § 75, at 537. Authority condemning punitive damages for tortious actions committed innocently is relevant to copyright's strict liability regime because copyright infringement constitutes a tortious act. See Porter v. United States, 473 F.2d 1329, 1337 (5th Cir. 1973) ("[I]t has always been held that infringement of copyright, whether common law or statutory, constitutes a tort.") (citations omitted).
74. See PROSSER AND KEETON ON TORTS, supra note 16, § 2, at 9-10 (opining that punitive damages should not be charged "against one who acts under an innocent mistake in engaging in conduct that nevertheless constitutes a tort").
75. See id. § 2, at 9-10, 14; Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of Punitive Damages, 56 S. CAL. L. REV. 1,4-10 (1982). "[D]eterrence objectives justify imposing punitive damages only in cases where compensatory damages alone produce less than optimal deterrence." Id. at 9.
76. Compare Rinker v. Ford Motor Co., 567 S.W.2d 655, 669 (Mo. Ct. App. 1978) (affirming punitive damages award in strict liability action for faulty manufacture of automobile), with Thomas v. Commercial Credit Corp., 335 S.W.2d 703, 706 (Mo. Ct. App. 1960) (vacating punitive damages award where finance company innocently procured property not belonging to it).
77. This Article employs both masculine and feminine pronouns but does not suggest any preference for either one.
78. Cf. United States v. U.S. Dist. Court for the Cent. Dist. of Cal, 858 F.2d 534, 538, 543 (9th Cir. 1988) (interpreting child pornography statute as including innocence defense that requires mistake of fact to be "reasonable").
79. See, e.g., Open Source as Alternative, http://www.osalt.com/about (explaining benefits of open source software).
80. See 17 U.S.C. § 504 (2006) (outlining damages available to single copyright owner for copyright infringement).
81. See Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 STAN. L. REV. 1345, 1375-76 (2004) (discussing the substantial negative effect that online infringement poses to copyright holders).
82. See Lemley, supra note 3, at 552-56 (observing the multiple ways for innocently copying material on the Internet);
83. Lemley & Reese, supra note 66, at 1375 (noting minimal cost and ease of digital copying).
84. See Lemley & Reese, supra note 66, at 1375.
85. Cf. id. at 1351 ("[T]he only way to effectively deter infringement is to increase the effective sanction substantially for those few who are caught and prosecuted."). Professors Lemley and Reese asserted this point (quoted in the preceding sentence) with respect to intentional infringers.
86. Bennis v. Michigan, 516 U.S. 442, 460 (1996) ("[E]lementary notions of fairness require some attention to the impact of a seizure on the rights of innocent parties."). But cf. Phile qui tarn v. Ship Anna, 1 U.S. 197, 207 (1787) ("The law never punishes any man criminally but for his own act, yet it frequently punishes him in his pocket, for the act of another.").
87. See Phillip Morris USA v. Williams, 127 S. Ct. 1057, 1063 (2007) (opining that the imposition of damages to punish defendant for injuries of nonparties to the litigation violated the Due Process Clause because the defendant would not have the opportunity to defend against this claim).
88. Cf. id. (contemplating potential for disparate circumstances of nonparty victims).
89. See, e.g., BMG Music v. Gonzalez, 430 F.3d 888, 891-92 (7th Cir. 2005) (refusing to consider innocence plea where plaintiffs, BMG Music, Sony Music Entertainment, Inc., UMG Recordings, Inc., Fonovisa, Inc., and Atlantic Recording Corp., were large corporate copyright holders); see also supra note 5.
90. Transaction costs of bringing suit pose a barrier for smaller copyright holders to pursue an infringement action. See Michael J. Meurer, Copyright Law and Price Discrimination, 23 CARDOZO L. REV. 55, 143 (2001) (recognizing that litigation costs of pursuing copyright infringement represent rent-seeking costs). Average law firm billing rates were $348 per hour for the year of 2007. Debra Cassens Weiss, Big Firm Hourly Billing Rates Up Almost 8%; Average is $348, A.B.A. J., Dec. 11, 2007, available at http://www.abajournal.com/news/ big-fírm-hourly-billimg-rates-up-almost-8-avrage-is-348/.
91. RIAA, Who We Are, http://www.riaa.com/aboutus.php.
92. See Press Release, RIAA, RIAA Sends More Pre-Lawsuit Letters to Colleges One Year into Campaign (Feb. 21, 2008), available at http://riaa.com/newsitem.php?id=BOFAEEC1-A56A-0F04-D999-94A807ADAA6E.
93. See Matthew Sag, Piracy: Twelve-Year Olds, Grandmothers, and Other Good Targets for the Recording Industry's File Sharing Litigation, 4 Nw. J. TECH. & INTELL. PROP. 133, 133-34 (2006); see also supra notes 5, 10, and 21.
94. See Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 345, 383 (1995) ("In the past copyright law... [allowed] copyright owners to sell physical copies of their works so purchasers were able to use these physical copies only subject to the owner's exclusive rights. Digitization undermines the copyright owner's ability to sell copies of his work and collect fees.");
95. Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. 1245, 1255 (2001) ("Copies of copyrighted works can now be distributed in digital form, without the exchange of any physical object, without any title in physical property changing hands, and all indications suggest that this will only increase over time, as computer network capacities increase and compression technologies improve.").
96. See generally 2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8.12[E] (2008).
97. See 17 U.S.C. §§ 101, 106(3) (2006) (providing copyright holder exclusive right "to distribute copies" of copyrighted work and defining "copies" to be "material objects ... in which a work is fixed ...."); 2 NIMMER & NIMMER , supra note 79, § 8.12[E] ("Copyright matured in a universe in which... the public... typically acquired some physical manifestation containing the work.");
98. R. Anthony Reese, The Public Display Right: The Copyright Act's Neglected Solution to the Controversy over RAM "Copies", 2001 U. ILL. L. REV. 83, 126 (2001) ("[T]he copyright owner's exclusive right of distribution is a right to distribute ... tangible, physical things.").
99. Implicit support for the factual assumption that consumers of copyrighted works must purchase physical copies ofthe works arises from the first-sale doctrine. See 17U.S.C. § 109(a). This doctrine limits copyright holders' control over the distribution of their work to the first instance where the work is physically disposed. See id.; 2 NIMMER & NIMMER, supra note 79, § 8.12[A]. Any person lawfully possessing a copy of the work is entitled to "dispose of the possession of that copy." 17 U.S.C. § 109(a). This Section suggests, then, that the law presumes that persons lawfully acquiring copyrighted works will do so through means of physical procurement rather than through copying.
100. Where a copyright holder does not seek to enforce her rights, she would not place a copyright notation on the work. See H.R. REP. NO. 94-1476, at 143 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5759 (describing copyright notice). By observing the absence of a mark, consumers are aware of the intent to not enforce the copyright. Instances where a pirated copy might not contain a copyright notation are usually discemable in real space from instances where a genuine work lacks a notation because of the pirated copy's qualitative difference in appearance. If there is no qualitative difference between the pirated copy and the genuine work, the pirated copy is likely a product of professional duplication, which suggests the work is popular and in high demand, further suggesting that it would be well known if its copyright was being enforced.
101. For instance, users rely on the representations of the SSRN Web site, which represents that the material may be freely downloaded. See SSRN, supra note 12.
102. See, e.g., Legal Sounds, http://www.legalsounds.com (selling online music for download, and suggesting that the downloading is legal). Alternatively, a Web site might falsely represent that the copyright holder has relinquished rights to a work. An Internet user is unable to observe whether the work has a copyright notation, or whether indications surrounding the work-such as a CD label covering-indicate its illegitimacy, thereby affecting a user's ability to assess the veracity of that representation by the Web site. Finally, a Web site poster might represent that a downloadable file consists of something entirely different from its actual content.
103. Cf. ERNEST J. WEINREB, THE IDEA OF PRIVATE LAW 19, 120-26 (1995) (arguing that an actor must breach a duty to be liable under a corrective justice regime).
104. See Pure Country Weavers, Inc. v. Bristar, Inc., 410 F. Supp. 2d 439, 448 (W.D.N.C. 2006) ("[N]o right of indemnification was affirmatively created (either expressly or implicitly) by Congress in the Copyright Act, and... this is not one of the 'limited situations' in which the Court should formulate federal common law to create such a right.").
105. See id.; see also PROSSER AND KEETON ON TORTS, supra note 16, § 30, at 164-65 (outlining tort of negligence); id. § 106, at 736-38 (outlining tort of misrepresentation). A claim under the Uniform Commercial Code would also fail for the simple reason that intellectual property does not qualify as a "good" under Article 2. See Fink v. DeClassis, 745 F. Supp. 509, 516 (N.D. 111. 1990) (refusing to recognize intellectual property as goods under the U.C.C.).
106. See PROSSER AND KEETON ON TORTS, supra note 16, § 30, at 164-65 (outlining tort of negligence); id. § 106, at 736-38 (outlining tort of misrepresentation).
107. Cf. Jonathan Zittrain, A History of Online Gatekeeping, 19 HARV. J.L. & TECH. 253, 291-92 (2006) (commenting that authors of piracy code that facilitates Internet copyright infringing "might never be found and, if found, likely would be judgment-proof').
108. See PROSSER AND KEETON ON TORTS, supra note 16, § 32, at 173-75 (describing the reasonable person standard in negligence); id. § 107,at 741 (noting the scienter requirement for the tort of misrepresentation); see, e.g., SSRN, supra note 12 (follow "Submit" link) (requiring uploaders of articles to have copyright authority to post articles).
109. Cf. Zittrain, supra note 89, at 291-92.
110. See, e.g., PrivacyView, Anonymous Surfing, http://www.privacyview. com/default.aspx (marketing software that allows user to mask IP address from ISP).
111. Liability would not arise under copyright law for the simple reason that Congress has not granted copyright holders any rights over the receipt of physical copies. Although copyright holders may exclude others from reproducing and distributing their works, they may not exclude others from physically receiving an unauthorized copy. See 17 U.S.C. § 106 (2006) (stating exclusive rights of copyright holders without referencing any right over receipt of physical copies); id. § 501 (defining infringement as violating exclusive rights of copyright owner);
112. Foreign & Domestic Music Corp. v. Licht, 196 F.2d 627, 629 (2d Cir. 1952) (Hand, J.) ("[0]ne does not infringe a copyright by buying an infringing copy of the 'work,' though the buyer will infringe, if in his turn he sells the copy he has bought, just as he does, if he 'publicly performs' it for profit.");
113. Societe Civile Succession Richard Guino v. Int'l Found, for Anticancer Drug Discovery, 460 F. Supp. 2d 1105, 1107 (D. Ariz. 2006) ("The Copyright Act of 1976 does not authorize the impoundment of infringing property purchased by a non-infringing person."). If, however, the procurer of the physical copy instigated the copying, contributory liability would lie. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) ("One infringes contributorily by intentionally inducing or encouraging direct infringement....").
114. See 17 U.S.C. § 106(1). Similarly, liability arises if a consumer prepares a derivative work or makes a public display or performance. See id. § 106(3)-(4).
115. See supra note 93.
116. See supra note 93.
117. NIMMER & NIMMER, supra note 79, § 13.08.
118. Circumstances would be exceptional because, as discussed above, a presumption exists in real space that copying is prohibited. A misbelief that copying is a fair use would not constitute a circumstance of innocence because "[fjair use is a mixed question of fact and law." See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1984). It should further be noted that innocence is not relevant in the fair use analysis. See 17 U.S.C. § 107 (listing criteria for determining whether copying is fair use); id. § 504 (imposing statutory damages for innocent copying);
119. Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983) ("[W]hatever may be the breadth of the doctrine of 'fair use,' it is not conceivable to us that the copying of all, or substantially all, of a copyrighted song can be held to be a 'fair use' merely because the infringer had no intent to infringe." (quoting Wihtol v. Crow, 309 F.2d 777, 780 (8th Cir. 1962))).
120. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding liable defendant who had in good faith forgotten that the plaintiffs work was the source of his own).
121. See 4 NIMMER & NIMMER, supra note 79, § 13.08.
122. See id.
123. Cf. United States v. U.S. Dist. Court for the Cent. Dist. of Cal., 858 F.2d 534, 538-43 (9th Cir. 1988) (interpreting Child Protection Act to recognize innocence defense where defense would allow for a " reasonable" mistake of fact).
124. For an example of a Web site offering downloads with an appearance that would not support a reasonable belief that the downloads were noninfringing, see Kazaa, http://kazaa.com.
125. See Copyright Act of 1976, Pub. L. No. 94-553, § 101, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§ 101-805, 1001-1205 (2006)).
126. See supra notes 80-81 and accompanying text.
127. See 4 NIMMER & NIMMER, supra note 79, at § 13.08.
128. See supra Part I.A.2.
129. See H.R. REP. No. 94-1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5779 (stating that reduction of statutory damages would apply "in cases of occasional or isolated innocent infringement").
130. Id.
131. Cf. id. ("[B]y establishing a realistic floor for liability, the [strict liability] provision... would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant's claim of innocence.").
132. Cf. Corey W. Roush, Database Legislation: Changing Technologies Require Revised Laws, 28 U. DAYTON L. REV. 269, 303 (2002) (discussing the need for strong copyright protection of databases given the ease of copying on the Internet).
133. See Lemley & Reese, supra note 66, at 1375-76 (observing that ease of copying in the online context requires enforcement of property rights against infringers).
134. See INFO. INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 7-11 (1995) (suggesting that unless copyright law were strengthened in the digital age, authors would refuse to make their works available to the public).
135. Cf. Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1365-67 (N.D. Cal. 1995) (excusing direct infringement liability of site operator and ISP because copying was nonvolitional).
136. Cf. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549-51 (4th Cir. 2004) (excusing direct infringement liability of site operator because the conduct involved in copying was akin to that of a copy machine owner).
137. The effect of strict liability, then, is to strengthen copyright to such an extent that it undermines the very purpose of copyright-to further the progress of science. Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,577 (1994) (warning courts-in the context of fair use- to avoid a rigid application of copyright that would stifle the very creativity that copyright is designed to foster);
138. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 YALE L.J. 882,887-95 (2007) (observing that strong copyright protection undermines purposes of copyright because copyright users avert potential lawsuits in unsettled areas of fair use by seeking licenses for use rather than determining whether use is fair).
139. It should also be noted that not all copyright holders seek to enforce their right to preclude unauthorized downloading, yet they still retain their
140. The argument that the passiveness of an innocent Internet actor's copying should excuse him from liability is not foreign to case law. Where Internet actors' copying has appeared passive, courts have excused them on the grounds that their apparent copying did not constitute copying under the Copyright Act. See CoStar Group, Inc., 373 F.3d at 549-51 (excusing liability of site operator); Netcom, 907 F. Supp, at 1365-67 (excusing liability of site operator and ISP). But see Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552,1556-59 (M.D. Fla. 1993) (finding operator liable for infringement despite operator's lack of knowledge). In Netcom, infringing material appeared on an electronic bulletin board system (BBS), so the copyright holder alleged infringement against both the site operator and the ISP for copying the material: their devices copied the posted works onto the BBS. Netcom, 907 F. Supp, at 1367-68,1373, 1381-82. Refusing to find either actor liable, the court reasoned that "copying" under the Copyright Act required the presence of an affirmative act of volition or causation, in contrast to an act that was automatic or indiscriminate. Id. at 1367-72,1381. Notably, there is nothing in the Copyright Act to support this interpretation of "copying." See 17 U.S.C. §§ 101,106,501 (2006). The court expressly recognized that the Copyright Act mandates strict liability, but simply refused to apply that mandate. Netcom, 907 F. Supp, at 1370. Another example of a court refusing to apply copyright's strict liability to an innocent Internet actor occurs in CoStar Group, Inc, 373 F.3d at 549-551. There, an ISP made a Web site available to its subscribers, real estate brokers, for the purpose of posting real estate listings. Id. at 547. The process of posting was rather involved: after a subscriber uploaded a photograph for the ISP to post on its Web site, the ISP would examine the photograph for any evidence that the photograph may have infringed a copyright, and only if the ISP did not find such evidence did the ISP then click a button to make the photograph available for other Web site users. Id. Despite these precautions, subscribers posted infringing material on the ISP's Web site, so the copyright holder sued the ISP. Id. Adopting the reasoning of Netcom, the Fourth Circuit declared that a person must engage in volitional conduct to have committed the act of copying. See id. at 549-51. The court made clear that passive conduct on the part of the ISP excused it from liability. See id. at 550. Also notable in the CoStar case is the fact that the ISP examined the content of all the photographs. The court employed this fact to bolster its argument against finding liability. See id. at 556. This suggests that thoughts and actions undertaken to avoid possible infringement strengthen the argument that strict liability should not apply to actors whose conduct would otherwise be passive in nature. That is, affirmative actions to avoid infringement should not disqualify an otherwise passive actor from asserting an innocence defense. This position is consistent with an innocence defense where innocence must be reasonable to excuse liability, for efforts to avoid infringement strengthen the reasonableness of a mistaken belief giving rise to the innocence. See, e.g., Nolan v. Indiana, 863 N.E.2d 398,404 (Ind. Ct. App. 2007) (holding that a mistake of fact must be reasonable to recognize a mistake-of-fact defense); see also 17 U.S.C. § 504(c)(2) (2006) (requiring defendant to show that he "had no reason to believe" that his acts constituted infringement for court to discretionarily reduce statutory damage amount). Specifically, the fact that the ISP screened the photographs supports the reasonableness of its belief that the photographs were not infringing. CoStar thus supports the argument that innocent actors whose actions are passive should not be liable, and that affirmative actions to avoid infringement should strengthen the claim of innocence.
141. See Tech News World, WiFi Hotspot Locator, http://www. technewsworld.com/hotspot- locator/ (providing information regarding physical location of wireless Internet access points).
142. See YouTube, http://www.youtube.com.
143. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993) (holding defendant liable for making infringing "copy" of operating system software that the defendant loaded into computer RAM merely by turning on the computer).
144. RealPlayer, http ://realplayer.com/ ("Download videos from thousands of Web sites with just one click.").
145. See supra note 118.
146. See 17U.S.C. §§412, 504(c)(1) (2006) (imposing minimum statutory damages of $750 for materials embodied on phonorecords);
147. Apple, iTunes Store, http://www.apple.com/itunes/store (selling downloadable music for ninety-nine cents per song).
148. See Ronald J. Mann & Seth R. Belzley, The Promise of Internet Intermediary Liability, 47 WM. & MARY L. REV. 239, 240 (2005) ("[A] reduction in information costs . .. makes it easier for the intermediaries to monitor the conduct of end users ....").
149. See 17U.S.C. § 512(h) (2006) (authorizing issuance of subpoena to ISP for identifying copyright infringer).
150. For instance, intentional infringers can mask their IP address from their ISP and download from password-protected sites or sites undetectable to search engines. See, e.g., PrivacyView, Anonymous Surfing, http://www. privacyview.com/default.aspx (marketing software that enables users to mask their IP addresses).
151. See Flickr, About Flickr, http://www.flickr.com/about/.
152. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) ("[C]oρyright's purpose is to promote the creation and publication of free expression.").
153. See Flickr, http://www.flickr.com (follow "Copyright/IP Policy" link at bottom of page).
154. See 4 NIMMER & NIMMER, supra note79, § 13.06 ("Abandonment occurs only if there is an intent by the copyright proprietor to surrender rights in his work.").
155. See Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 521 (9th Cir. 1997) (explaining that copyright misuse turns on whether the copyright is being used "in a manner violative of the public policy embodied in the grant of a copyright" (quoting Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970,978 (4th Cir. 1990))).
156. Dam Things from Denmark v. Russ Berrie & Co., 290 F.3d 548, 560 (3rd Cir. 2002) (recognizing the "split of authority as to whether an overt act is necessary to establish abandonment"); see also 4 NIMMER & NIMMER, supra note 79, § 13.06 (collecting conflicting authorities).
157. See Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 483 (2d Cir. 2004) ("[ A]bandonment of copyright requires'(1) an intent by the copyright holder to surrender rights in the work; and (2) an overt act evidencing that intent.'" (quoting Capitol Records, Inc. v. Naxos of Am, Inc, 262 F. Supp. 2d 204, 211 (S.D.N. Y. 2003))).
158. See 17 U.S.C. §§ 106,501(a), 504(c) (2006) (providing for statutory damages against innocent infringers).
159. See Lasercomb Am, Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990).
160. See MCA Television Ltd. v. Pub. Interest Corp, 171 F.3d 1265, 1277-79 (11th Cir. 1999); 4 NIMMER & NIMMER, supra note 79, § 13.09[A][1][b].
161. See BMG Music v. Gonzalez, 430 F.3d 888, 890-92 (7th Cir. 2005) (finding liability despite innocence argument in context of Internet downloading).
162. See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) ("[T]he Framers intended copyright itself to be the engine of free expression." (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985))).
163. quot;Patent trolling" occurs when patent holder firms employ their patents to extract settlements rather than license or manufacture technology. See generally Gerard N. Magliocca, Blackberries and Barnyards: Patent Trolls and the Perils of Innovation, 82 NOTRE DAME L. REV. 1809 (2007) (discussing history of patent trolling). Congress has considered legislation to eliminate the practice of patent trolling. See Patents Depend on Quality Act of 2006, H.R. 5096, 109th Cong. (2006);
164. Patent Act of 2005, H.R. 2795, 109th Cong. (2005).
165. See supra Part I.A.3.
166. See Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545,1554 (9th Cir. 1989) ("Statutory damages are available in order to... deter infringement.");
167. H.R. REP. NO. 94- 1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5779 ("[B]y establishing a realistic floor for liability, the [strict liability] provision preserves its intended deterrent effect....");
168. Garland Interview, supra note 22 (commenting that empirical studies suggest that suits by the RIAA have stigmatized music downloading, which has resulted in a deterrence of downloading through file-sharing).
169. See Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright, 14 GEO. MASON L. REV. 271,276-77,283 (2007) (arguing that where it is unclear whether an author has removed a work from the Creative Commons, "[r]ίsk averse individuals will steer far clear of any potential infringement and will thus forgo engaging in uses that would be permissible); cf. Mark A. Lemley, Rationalizing Internet Safe Harbors, 6 J. ON TELECOMM. & HIGH TECH. L. 101, 111 (2007) (positing that if service providers and Web site operators were to face the prospect of statutory damages for their innocent acts of copying, they would either cease doing business or restrict the content that they will carry to such an extent that they would "lock down the Internet");
170. Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833,1879 (2000) ("The risk averse ISP ... will likely respond to notice of potential subscriber infringement by suspending Internet service.").
171. For example, under the Uniform Commercial Code, a good-faith purchaser receives good title to property acquired from a merchant who was entrusted only to maintain the property. U.C.C. § 2-403(1) (2004).
172. SEE 1 DAN B. DOBBS, THE LAW OF TORTS §§ 66,67, AT 146,152 (2001) (OBSERVING THAT UNDER TRADITIONAL COMMON LAW RULE, A GOOD-FAITH PURCHASER OF CONVERTED GOODS IS HIMSELF A CONVERTER, BUT PUNITIVE DAMAGES FOR CONVERSION LIE ONLY WHERE A DEFENDANT HAS A RECKLESS OR MALICIOUS STATE OF MIND).
173. See id. §67, at 150.
174. See PROSSER AND KEETON ON TORTS, supra note 16, § 15, at 90 (citing good-faith intent as influential in determining whether to provide a remedy for trespass rather than conversion). Some states have enacted statutes to protect good-faith purchasers and holders of converted property from incurring any damages. See, e.g., COLO. REV. STAT. § 18-4-405 (2004) ("[M]onetary damages ... shall not be recoverable from a good-faith purchaser or good-faith holder of [stolen] property.").
175. See supra Part I.A.2.
176. See supra Part I.A.2.
177. See Foreign & Domestic Music Corp. v. Licht, 196 F.2d 627,629 (2d Cir. 1952) (Hand, J.) ("[O]ne does not infringe a copyright by buying an infringing copy of the 'work,'....").
178. See supra Part I.A.2.
179. Although Congress has authority to restrain trade, this does not mean that doing so is good policy. See United States v. Carolene Prods. Co., 304 U.S. 144 (1938) (finding constitutional a law prohibiting the shipment of filled milk in interstate commerce); cf. 15 U.S.C. § 1 (2006) (making illegal private contracts that are "in restraint of trade or commerce");
180. State Oil Co. v. Khan, 522 U.S. 3, 10 (1997) (interpreting the Sherman Act as outlawing unreasonable restraints of trade).
181. See Jessica Litman, War Stories, 20 CARDOZO ARTS & ENT. L.J. 337, 337 (2002) (stating that the ease of dissemination in a virtual market is a result of the removal of distribution intermediaries).
182. Cf. Daniel J. Solove, Should Publishers Put Their Books Online for Free?, CONCURRING OPINIONS, Feb. 8, 2008, http://www. concurrmgopinions.com/archives/2008/02/should-publishe.html (contemplating that Internet distribution of downloadable books would reduce production costs and increase revenues for authors).
183. E.g., Lost Cat Records, Indie Music Stop, http://indiemusicstop. blogspot.con^2007/03/industi7-feature-april-2007-lost-cat.html (Mar. 31, 2007,17:57 EST) [hereinafter Lost Cat Records] ("[T]he cost of producing, warehousing and selling physical CD's is cost-prohibitive for a small label like us, whereas the cost of posting and selling digital downloads is within our reach.").
184. E.g., Larry Hardesty, The Tipping Jar: Does Radiohead 's Internet Release of Its Latest Album Tell Us Anything About the Future of the Music Business?, TECH. REV., Jan.-Feb. 2008, http://www. technologyreview.com/read-article.aspx?id=19870&ch=biztech&a=f.
185. Are Record Labels Dead?, CNN.COM, Oct. 12, 2007, http://www.cnn.com/2007/SHOWBIZ/Music/10/12/irrelevantrecordlabels.ap/index. html (describing growing trend in music industry for musicians to cease relations with record labels because of online distribution methods).
186. See Litman, supra note 153, at 341-42; Future of Music Coalition, iTunes Digital Downloads: An Analysis, http://www.futureofrnusic.org/ itunes.cftn [hereinafter iTunes Analysis] ("With no deductions for shipping, storing, breakage, packaging, and returns, the marginal costs of selling songs through digital download services is almost nil. As a result major label artists should demand to be compensated for these sales at a unique and higher rate.").
187. E.g., Posting of Tim Leberecht to CNET, http://www.cnet.com/8301- 13641-l- 9790113-44.html (Oct. 2, 2007,23:04 PST) (describing pop music band's decision to market songs directly to public, allowing users to pay consumer-determined value);
188. Posting of Greg Sandoval to CNET Download.com, http://music.download.com/ 8300-5-32- 13.html?keyword=Radiohead (Jan. 25, 2008, 15:07 PST) (same).
189. See Lost Cat Records, supra note 155 (noting success of Web site that distributes music of lesser-known artists exclusively through downloads because of decreased distribution costs).
190. See, e.g., iTunes Analysis, supra note 158 (describing resources that iTunes has expended to build credibility).
191. See iTunes, Legal Information & Notices, http://www.apple.com/ legal/terms/site.html (representing that all expression on the iTunes Web site is owned by or licensed to the site owner).
192. Creative Commons, http://creativecommons.org.
193. See Creative Commons, CCSearch, http://wiki.creativecommons.org/ CcSearch.
194. See Graham Brown, The 10 Changes a CEO Needs to Make to Win Young Consumers - 4 Give First (Free is a Viable Business Model), MOBILEYOUTH, Feb. 4, 2008, http://www.mobileyouth.org/post/the-10- changes-a-ceo-needs-to-make-to-win-young- consumers-4-give-first-free-is-a- viable-business-model/ (suggesting that offering free downloads is necessary to establish credibility with target market).
195. See supra Part I.C.I.
196. Compare LegalSounds, http://www.legalsounds.com, with Apple, iTunes, http://www.apple.com/itunes/store.
197. See Michael Mertens, Thieves in Cyberspace: Examining Music Piracy and Copyright Law Deficiencies in Russia as it Enters the Digital Age, 14 U. MIAMI INT'L & COMP. L. REV. 139, 171 (2006) (noting that United States enforcement of copyright law is dubitable against Russian Web sites offering infringing material).
198. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc. 508 F.3d 1146, 1172 (9th Cir. 2007) (contemplating infringement by Web site if operator had knowledge of infringing material available on its site).
199. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 33 I.L.M. 1197 (establishing enforcement procedures for international violations of intellectual property).
200. See, e.g., Jay Fitzgerald, Web Traffic Face-Off: Critics Call Comcast "Disasterfor Free Speech", BOSTON HERALD.COM, Feb. 22, 2008, http://www.bostonherald.com/business/technology/general/view.bg? articleid=1075209 (describing how ISP can interfere with end user access to file-sharing Web sites).
201. See infra Part II.A. 1-2.
202. See infra Part II.B.
203. See infra Part II.C.1-2.
204. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.").
205. See ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa. 1996) ("It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country-and indeed the world-has yet seen."), aff'd, 521 U.S. 844(1997).
206. See Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805,1808-10 (1995) (positing that the Internet gives rise to democratic and diverse speech).
207. Cf McConnell v. Fed. Election Comm'n, 540 U.S. 93, 335 (2003) (Kennedy, J., dissenting) ("[A] law [is] unconstitutional under any known First Amendment theory that would allow a speaker to say anything he chooses, so long as his intended audience could not hear him.").
208. The fact that this First Amendment argument regards the author as the speaker alleviates potential problems with Supreme Court jurisprudence. In Eldred v. Ashcroft, the Court considered a challenge to Congress's extension of the copyright term, where the challenger argued that copyright law constituted a content-neutral speech regulation that fails strict-scrutiny analysis. 537 U.S. 186, 218-19 (2003). The challenger posited that copiers engage in protected speech. The Court rejected that argument on the basis that copyright's built-in free speech safeguards, such as the doctrines of fair use and the idea-expression dichotomy, are "generally adequate" to address First Amendment concerns of a copier. Id. at 221. In the wake of Eldred, then, it seems unlikely that the Court would recognize the merits of a challenge to copyright based on a copier's free speech interests. Because the First Amendment argument herein posits that speech of authors is undermined by strict liability, rather than speech of copying downloaders, this argument is distinguishable from the speech model that Eldred rejected.
209. Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (recognizing the need for "breathing space" within the confines of copyright in the context of fair use analysis);
210. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (requiring breathing space for speakers facing strict punishment of unprotected speech).
211. Cf. Schenck v. United States, 249 U.S. 47, 52 (1919) ("The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic").
212. Cf. United States v. U.S. Dist. Court for the Cent. Dist. of Cal., 858 F.2d 534,536 (9th Cir. 1988) ("[A] rule that would impose strict liability on a publisher for unprotected speech would have an undoubted 'chilling' effect on speech that does have constitutional value.").
213. Cf. Hustler Magazine v. Falwell, 485 U.S. 46,52 (1988) (discussing chilling effect on protected speech that results from imposing strict liability for engaging in unprotected speech);
214. Stanley v. Georgia, 394 U.S. 557,564 (1969) ("[T]he Constitution protects the right to receive information and ideas.").
215. This statement that the Copyright Act targets "unprotected" speech stems from Supreme Court jurisprudence. See Eldred, 537 U.S. at 219 (ruling that "built-in First Amendment accommodations" of copyright law make copyright's suppression of copyrighted speech constitutional).
216. See, e.g., BMG Music v. Gonzalez, 430 F.3d 888, 891-92 (7th Cir. 2005) (finding liability despite innocence argument in context of Internet downloading).
217. See supra Part I.C. 1 (discussing deterrent effect on legal downloading).
218. See supra Part I.C.2 (discussing result of deterrent effect that users download from only trusted sites).
219. See Kleindienst v. Mandel, 408 U.S. 753,762-63 (1972) ("[T]he Constitution protects the right to receive information and ideas .... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here." (citations omitted)); cf. Universal City Studios, Inc. v. Corley, 273 F.3d 429,447,451 (2d Cir. 2001) (reasoning that computer code is a form of expression deserving of First Amendment speech protection).
220. S. 147 (1959).
221. Id. at 148.
222. Id. at 153.
223. Id.
224. Id.
225. Id. at 153-55.
226. Id. at 153.
227. See supra Part I.C. 1 (discussing strict liability deterrence of downloading).
228. See 17 U.S.C. § 512(c) (2006).
229. See Zeran v. Am. Online, Inc., 129 F.3d 327,330-31 (4th Cir. 1997) (explaining that the DMCA was enacted because "Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium"). For ISPs that innocently copy infringing material yet do not satisfy all of the eligibility requirements for the safe harbor of the DMCA, courts have proceeded to recognize an exception to copyright's strict liability for these ISPs. See, e.g., CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544,549,552-53 (4th Cir. 2004) (excusing ISP from liability despite its failure to be eligible for DMCA protection); see also supra note 118 (discussing judicial reluctance to apply copyright's strict liability to Web publishers).
230. See, e.g., United States v. Am. Library Ass'n, 539 U.S. 194, 218-20 (2003) (upholding a statute that restricted Internet access to indecent speech for library patrons).
231. See id. at 219-20 (upholding a statute restricting Internet access for library patrons on grounds that patrons could employ alternative means for viewing the speech, namely requesting that a librarian remove the filter).
232. See, e.g., Amazon.com, http://www.amazon.com (follow "Music" link).
233. Receiving speech in real space refers to the traditional means of acquiring speech, such as purchasing a book or a CD at a store, as opposed to downloading songs from cyber space.
234. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748,757 n.15 (1976) ("We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners could come by his message by some other means . . . .");
235. Kleindienst v. Mandel, 408 U.S. 753,765 (1972) (rejecting the argument that alternative media for receiving speech should altogether extinguish the constitutional tension of restricting public's access to ideas through a specific medium).
236. The increasingly popular Web site YouTube.com demonstrates myriad instances of speech where Internet speakers attempt to reach a worldwide audience through users downloading expression (into their cache memory). YouTube.com, http://www.youtube.com. The Internet audience is unable to procure much, if not most, of the speech offered for download on YouTube.com through real space means.
237. See Lost Cat Records, supra note 155 (commenting that musical works of lesser-known artists are available only through Internet distribution).
238. See, e.g., Max Fraser, The Day the Music Died, NATION, NOV. 27, 2006, http://www.thenation.com/doc/20061211/fraser (reporting bankruptcy of Tower Records- longtime leading brick-and-mortar record store seller-owing to rise of online music market).
239. The Spin Doctors' song, Hard to Exist, may encounter difficulty existing in real space, but not in cyberspace. See mp3.com, Spin Doctors, http://www.mp3.com/albums/15045/summary.html (offering Spin Doctors' Hard to Exist song for download).
240. See supra note 206 and accompanying text.
241. See Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666,675,678 (1998) ("[P]ublic broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine.... The Court has rejected the view that traditional public forum status extends beyond its historic confines . . . .");
242. Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 BERKELEY TECH. L.J. 1115,1120-21 (2005) (commenting that the hoped-for role of a public- forum Internet has not come to pass);
243. Rebecca Tushnet, Domain and Forum: Public Space, Public Freedom, 30 COLUM. J.L. & ARTS 597, 607 (2007) ("Internet access, even in a public library, is a new means of communication and therefore not part of a public forum.").
244. See Reno v. ACLU, 521 U.S. 844, 870 (1997) (describing Internet as providing "relatively unlimited, low-cost capacity for communication of all kinds");
245. New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1107 (CD. Cal. 2004) ("Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication such as electronic communication media like the internet [C]ourts have uniformly held or, deeming the proposition obvious, simply assumed that internet venues to which members of the public have relatively easy access constitute a 'public forum' or a place 'open to the public' " (citations omitted));
246. Barrett v. Rosenthal, 9 Cal. Rptr. 3d 142,148 (Cal. Ct. App. 2004) (opining that the contention that the Internet is not a public forum is a peculiar contention that is difficult to take seriously).
247. See Adrian Liu, Copyright as Quasi-Public Property: Reinterpreting the Conflict Between Copyright and the First Amendment, 18 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 383, 429 (2008) ("The Internet is an example of new technology that functions as a public forum because it provides an arena for speech and communication that is open and easily accessible.").
248. Bartnicki v. Vopper, 532 U.S. 514,534 (2001) (finding that pamphleteering represents the historical notion of debating public issues). Because the Supreme Court has likened Internet users to modern-day pamphleteers, it would seem that the same principle applies. See Reno, 521 U.S. at 870 (comparing an Internet user to a pamphleteer).
249. See Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) ("[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but... it need not be the least restrictive or least intrusive means of doing so.").
250. See supra Part I.C.2.
251. See supra Part I.C.2.
252. See Lost Cat Records, supra note 155.
253. Apple, iTunes Content Providers: Frequently Asked Questions, http://www.apple.com/itunes/contentproviders/faq.html [hereinafter Content Providers] (explaining royalty system for artists seeking to distribute through its Web site). Lesser-known artists seeking exposure seek distribution through any means. See Tim Wu, Pirates ofSundance, SLATE, Jan. 28, 2008, http://www.slate.com/id/2182950/.
254. See, e.g., Content Providers, supra note 217 (explaining the process for gaining eligibility to distribute on the iTunesWeb site); cf. Fitzgerald, supra note 171 (describing allegations that ISP interferes with its subscribers attempts at online sharing of files).
255. U.S. CONST, art. I, § 8, cl. 8 (providing that Congress shall have power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"). "Science" connotes "knowledge and learning." Arthur H. Seidel, The Constitution and a Standard of Patentability, 48 J. PAT. & TRADEMARK OFF. SOC'Y 5,12 & n. 14 (1966) (observing that at the time of drafting the Constitution, an authoritative dictionary first listed "knowledge" for a definition of "science"). In Graham v. John Deere Co., the Supreme Court commented that the purpose stated in the Copyright Clause limits congressional power. 383 U.S. 1,5-6 (1966). The Court stated: "The Congress in the exercise of the patent power [and thereby the copyright power] may not overreach the restraints imposed by the stated constitutional purpose." Id. Although the Graham Court considered the Clause's application under patent law, Congress's patent power arises from the same Clause, so it seems likely that the Court's comments regarding that Clause would apply in the copyright context as well. Accord Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) (describing the Copyright Clause as "both a grant of power and a limitation"). 220. Eldred, 537 U.S. at 219 ("[C]opyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression." (emphasis in original));
256. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539,558 (1985) ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."). 221. Cf. Eldred, 537 U.S. at 219 ("[T]he Framers intended copyright itself to be the engine of free expression.").
257. See id. at 212, 219.
258. See 17 U.S.C. § 504(cX2) (2006); supra note 1 (detailing history of strict liability in copyright law); supra Part I.A.2.
259. See supra Part I.A.2.
260. See supra Part I.C.I.
261. Cf. Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 966 (1990) ("To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliché ....").
262. See U.S. CONST. art. I, § 8, cl. 8.
263. S. 186,222 (2003) ("[T]he Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause.").
264. Id. at 219.
265. See id.
266. Id.
267. See INFO. INFRASTRUCTURE TASK FORCE, supra note 113, at 211 ("It is difficult for intellectual property laws to keep pace with technology. When technological advances cause ambiguity in the law, courts look to the law's underlying purposes to resolve that ambiguity. However, when technology gets too far ahead of the law, and it becomes difficult and awkward to adapt the specific statutory provisions to comport with the law's principles, it is time for reevaluation and change.").
268. See supra note 1
269. See 17 U.S.C. §§ 106, 504(c)(2) (2006) (imposing liability for innocent infringement without making an exception for innocent downloaders).
270. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 138 (1803) ("An act of congress repugnant to the constitution cannot become a law.").
271. See U.S. CONST, amend. V.
272. Washington v. Glucksberg, 521 U.S. 702, 728 (1997).
273. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).
274. See Washington, 521 U.S. at 728.
275. See supra note 220.
276. See supra note 220.
277. See supra note 219 and accompanying text.
278. This contrasts with real space, where copyright's strict liability punishment seems to satisfy the rational basis test for due process. In real space a plea of innocence can be difficult to disprove, such that punishing innocent copiers thwarts intentional copiers who misrepresent their innocence. See 4 NIMMER & NIMMER, supra note 79, § 13.08. Moreover, innocent copying occurs under exceptional circumstances in real space, so punishing innocent copiers does not interfere with the normal distributive process in which copyright holders distribute physical copies to consumers. See supra Part I.A.2. Strict liability in real space serves author monopolies, which is rationally related to the government interest of disseminating ideas and truth. 244. See H.R. REP. NO. 94-1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,5779 (stating that deterrent purpose of strict liability applies to innocent infringement); see also supra Part I.C.1.
279. See supra Part I.C.1.
280. See supra Part II.A (discussing restraint that strict liability punishment poses to online speech).
281. See supra Part II.A.l.
282. See supra Part I.C.I.
283. See supra Part ll.A.
284. See supra Part II.B.
285. See BLACK'S LAW DICTIONARY 885 (8th ed. 2004) (defining monopoly to mean "[c]ontrol or advantage obtained by one supplier or producer over the commercial market within a given region").
286. See supra Part I.A. 1.
287. See supra Part I.A. 1.
288. See supra Part I.A. 1.
289. See supra Part I.A. 1.
290. See supra Part I.B.
291. See supra Part I.B.
292. See supra Part I.B.
293. See supra Part I.B.
294. See supra note 220.
295. See, e.g., Pamela Samuelson, Preliminary Thoughts on Copyright Reform, 2007 UTAH L. REV. 551, 568 (2007) (noting that statutory damages in copyright law suggests a possible violation of due process rights);
296. Tehranian, supra note 53, at 1217 n.61 ("[O]ne wonders whether, given the Supreme Court's recent jurisprudence limiting punitive damages on due process grounds..., copyright's statutory damages provisions may violate due process rights in many cases." (citation omitted));
297. Barker, supra note 56, at 536 (arguing that substantive due process restricts the aggregation of minimum statutory damages for copyright infringement in file-sharing context).
298. See, e.g., Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 587-88 (6th Cir. 2007) (finding in copyright case that a penalty of forty-four times the actual damages "was not sufficiently oppressive to constitute a deprivation of due process");
299. Lowry's Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d 455,460 (D. Md. 2004) ("The Gore guideposts do not limit the statutory damages here because of . . . difficulties in proving-and in providing compensation for-actual harm in copyright infringement actions.").
300. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996) ("Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.").
301. Id. at 562; see also Phillip Morris USA v. Williams, 127 S. Ct. 1057, 1060 (2007);
302. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003);
303. Honda Motor Co. v. Oberg, 512 U.S. 415, 420 (1994).
304. See BMW, 517 U.S. at 574-75.
305. Id. at 575. In examining this element, courts consider whether the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, deceit, or was mere accident. State Farm, 538 U.S. at 419.
306. See supra text accompanying notes 63-64.
307. BMW, 517 U.S. at 580.
308. State Farm, 538 U.S. at 425. Ratios higher than double digits are permissible under special circumstances. See id. The Court has opined that the following circumstances may justify higher ratios: (1) the conduct at issue is particularly egregious; (2) the injury is hard to detect; or (3) the monetary value of noneconomic harm might be difficult to determine. See id. The excessive ratio for innocent downloading, however, does not appear to be justified by any of these circumstances. First, innocent downloading is not egregious conduct. Indeed, downloading material that reasonably appears to be noninfringing furthers virtual commerce and the dissemination of ideas. See supra Parts I.C, II.A. Second, innocent infringement likely occurs on Web sites that copyright holders can easily detect. See supra Part I.B. Third, although the value of some expression can be difficult to determine, the value of much expression is not difficult to determine. The value of songs that sell for one dollar can be determined easily, yet the statute contemplates the excessive ratio for such songs. Special circumstances do not seem to justify the ratio.
309. A downloader who innocently downloads a song is liable for the statutory penalty of $750. See 17 U.S.C. §§ 412, 504(c)(1) (2006). The value of a typical downloadable song is ninety-nine cents. See Apple, iTunes Store, http://www.apple.com/itunes/store/ (selling downloadable music for ninety-nine cents per song). Note that $750 is the minimum statutory penalty per innocently downloaded song. See 17 U.S.C. § 504(c)(1). If a court "considers [it] just," an innocent downloader could be liable for up to $30,000 for every infringing download. Id.
310. See Philip Morris USA v. Williams, 127 S. Ct. 1057,1062-65 (2007) (concluding that a punitive damages award roughly 100 times the actual damages awarded may not comply with the Due Process Clause and remanding to the Oregon Supreme Court for application of the correct constitutional standard); State Farm Mut. Auto. Ins. Co, 538 U.S. at 429 (concluding that a punitive damages award ratio of 145 to one with actual damages did not comport with due process of law); BMW, 517 U.S. at 585-86 (concluding that a punitive-damages award of 500 to one ran afoul of the Due Process Clause).
311. BMW, 517 U.S. at 583.
312. See supra text accompanying notes 145-52.
313. See 1 DOBBS, supra note 145.
314. See PROSSER AND KEETON ON TORTS, supra note 16, § 15, at 90.
315. This proposed remedy is consistent with Canada's approach to illegal downloading. The Canadian Copyright Board has opined that downloading infringing material is legal, although uploading that material is not. See COPYRIGHT BD. OF CAN., PRIVATE COPYING 2003- 2004, at 19-20, available at http://www.cb-cda.gc.ca/decisions/cl2122003-b.pdf; Posting of John Borland to CNET,http://news.cnet.com/2100-1025-3-5121479.html (Dec. 12,2003,14:20 PST).
316. Cf. United States v. U.S. Dist. Court for the Cent. Dist. of Cal., 858 F.2d 534,538-543 (9th Cir. 1988) (interpreting innocence defense as allowing for only a "reasonable" mistake of fact).
317. See supra Part I. A.2 (discussing need for copyright holder to be able to easily disprove mistaken belief that would be unreasonable).
318. See supra Part I.A.2 (discussing need for reasonableness standard for prevailing on mistake of fact argument).
319. See Flickr, About Flickr, http://www.flickr.com/about/ ("Flickr is the WD-40 that makes it easy to get photos or video from one person to another in whatever way they want.").
320. See supra note 84; supra text accompanying note 165.
321. Compare Fotosearch, Stockbyte, http://www.fotosearch.com/ stockbyte/ (offering online photographs for sale at a cost of hundreds of dollars per photo), with Apple, iTunes Store, http://www.apple.com/ itunes/store/ (offering online music for sale at a cost of ninety-nine cents per song).
322. Cf. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539,561 (1985) ("The drafters [of the Copyright Act]... structured the [fair use] provision as an affirmative defense requiring a case-by-case analysis.").
323. See 1 DOBBS, supra note 145 (noting that the common law holds a good-faith purchaser of converted goods strictly liable for the value of the goods).
324. Any deterrence would be minimal, reflecting the loss that a downloader would incur from the amount charged by the piracy Web site for the infringing material.
325. See 1 DAN B. DOBBS, LAW OF REMEDIES: DAMAGES-EQUN-RESITUTION, § 4.1 (2), at 371 (2d ed. 1993) (describing unjust enrichment claim as arising when "the defendant has been unjustly enriched by receiving something, tangible or intangible, that properly belongs to the plaintiff').
326. See id.
327. Cf. Eldred v. Ashcroft, 537 U.S. 186,212 n. 18 (2003) ("[C]opyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge " (quoting Am. Geophysical Union v. Texaco, Inc., 802 F. Supp. 1,27 (S.D.N.Y. 1992), aff'd, 60 F.3d 913 (2d Cir. 1994)) (emphasis in original)).
328. See 17 U.S.C. § 504(c) (2006) (providing for a discretionary award of increased damages in the amount of $150,000 per act of infringement where a court finds that the defendant willfully infringed); accord Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996,1010-11, 1014 (2d Cir. 1995) (affirming trial court's finding of willful infringement where defendants had deliberately intended to create a knock-off version of plaintiff's copyrighted clothing, and thereby affirming trial court's award of statutory damages).
329. See FED. R. CIV. P. 26(b).
330. Id.
331. Indeed, copyright holders presently use the judicial process of discovery to enforce their rights. Deposition Transcript of Matthew Ates, Lava Records, LLC v. Ates, No. Civ. A. 05- 1314, 2006 WL 1914166 (W.D. La. July 11, 2006) (on file with author).
332. See FED. R. CIV. P. 37(b)(2XAXvii) (providing that a court may "treat[ ] as a contempt of court" a party's failure to comply with a discovery order).
333. See generally 1 DOBBS, supra note 286, § 4.1 (2), at 557 (explaining unjust enrichment).
334. See Tim O'Reilly, What Is Web 2.0: Design Patterns and Business Models for the Next Generation of Software, O'REILLY, Sept. 30, 2005, http://www.oreillynet.com/pub/a/oreilly/tim/news/2005/09/30/what-is-web- 20.html.
335. Cf. 1 DOBBS, supra note 286, § 4.1 (2), at 563-64 (commenting that restitution may be bad policy even when unjust enrichment is shown where the resultant effect would be to risk free speech interests).
336. See id. § 4.1(2), at 557 (explaining unjust enrichment).
337. See id.
338. Cf. id. § 4.1(2), at 563-64 (arguing that restitution for unjust enrichment is inappropriate where doing so would risk overcompensating plaintiff).
339. See generally William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325 (1989).
340. Cf. Martin Peitz & Patrick Waelbroeck, File-Sharing, Sampling, and Music Distribution (Int'l Univ. in F.R.G., Working Paper No. 26/2004), available at http://ssrn.com/abstract=652743 (arguing that copyright holders' profits may increase from societal practice of unauthorized P2P file-sharing networks).
341. It should also be noted that the difficulty in distinguishing between innocent downloaders who would pay market value for the expression and those who would not pay may not exist under certain circumstances. Specifically, if an infringing Web site charges the innocent downloader a fee equal to or above the market value of the expression, then this circumstance would demonstrate that the downloader values the expression at least as much as the market value. This circumstance, however, should not result in actual damages being imposed against the innocent downloader. Were actual damages imposed, the innocent downloader would be forced to pay twice for the single expression downloaded once to the infringing Web site and once to the copyright holder. Furthermore, given that the copyright holder was pursuing the downloader rather than the infringing Web site, it is likely that the infringing Web site would be judgment-proof. In that situation, the innocent downloader would not be able to seek restitution for double payment. So the downloader would be paying for the same expression twice, which would ultimately deter him from downloading again. Thus, the fact that an innocent downloader has demonstrated his valuation of infringing downloads by paying for those downloads is not a sufficient reason to impose actual damages on that downloader.
342. See Sorrells v. United States, 287 U.S. 435,447-50 (1932) ("To construe statutes so as to avoid absurd or glaringly unjust results, foreign to the legislative purpose, is, as we have seen, a traditional and appropriate function of the courts.").
343. See McConnell v. Fed. Election Comm'n, 540 U.S. 93,180 (2003) ("When the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." (quoting Crowell v. Benson, 285 U.S. 22,62 (1932)));
344. New York v. Ferber, 458 U.S. 747,769 n.24 (1982) ("When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction.").
345. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 10 (1997) (interpreting the Sherman Actas outlawing "unreasonable" restraints of trade despite an absence of qualifying language in the statute); Sorrells, 287 U.S. at 447-52 (recognizing entrapment defense where statute did not so indicate);
346. Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892) (interpreting statute that imposed identification of Chinese nationals as not applying to certain Chinese merchants already domiciled in the United States, despite the absence of a statutory exception);
347. United States v. U.S. Dist. Court for the Cent. Dist. of Cal., 858 F.2d 534, 542-43 (9th Cir. 1988) (recognizing mistake-of-fact defense where statute strictly punished depiction of minor engaging in sexual conduct).
348. See U.S. Dist. Court, 858 F.2d at 542.
349. See Sorrells, 287 U.S. at 451; United States v. Katz, 271 U.S. 354, 362 (1926) (construing statute so as to avoid unreasonable application of language, which would have caused "extreme or absurd results," where legislative purpose would be satisfied with a more limited interpretation); Lau Ow Bew, 144 U.S. at 59 ("Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion.").
350. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,841 (1986) (noting that possible statutory constructions that would avoid constitutional questions must account for legislative will).
351. See supra Part I.A.2 (discussing that Congress likely did not intend for copyright's strict liability to apply to the Internet); cf. U.S. Dist. Court, 858 F.2d at 542 (recognizing mistake-of-fact defense because "there [was] no evidence that Congress considered and rejected the possibility of providing for such a defense").
352. H.R. REP. NO. 94-1476, at 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5779 (stating that minimum statutory damages reduction would apply "in cases of occasional or isolated innocent infringement").
353. See supra Parts I, II; cf. U.S. Dist. Court, 858 F.2d at 542 ("We have little doubt that Congress would prefer [the statute] with a reasonable mistake of [fact] defense to no statute at all.").
354. This would not be the first time that courts have construed copyright's strict liability provision as not applicable to innocent Internet actors. See supra note 118.
355. See supra Part III.A-B.
356. See supra Part I.A.2.
357. See supra Part I.A.2.
358. See supra Part I.B.
359. See supra Part I.A.
360. See supra Part I.C.
361. See supra Part II. A.
362. See supra Parts I.C, II