Filesharing - ND IL
- BMG Music et al. v. Gonzalez: Northern District of Illinois granted summary judgment in a file sharing suit against an individual file sharer accused of downloading 30 songs. The court rejected fair use and innocent infringer defences.
Gonzalez asserts that the "fair use" defense applies because she: (1) was just "sampling" the songs to determine if she wanted to purchase them; (2) already owned [*3] many of the songs she downloaded; and (3) did not cause any financial harm by downloading 30 songs. These contentions are without merit. First, the Ninth Circuit in A&M Records, Inc., 239 F.3d at 1014-19, rejected the argument that "sampling" by direct infringers is a "fair use." Second, the contention that Gonzalez already owned some of the recordings she downloaded is not relevant because the Recording Companies only seek redress for songs that Gonzalez admits she did not own.
Under section 402(d), however, the "innocent" infringement defense is not applicable "if a notice of copyright in the form and position specified by this section appears on the published [recordings] to which [the infringer] had access." (Emphasis added.) While it is undisputed that the copyrights of 30 songs at issue were properly noticed on the covers of CDs, Gonzalez contends that she has raised a question of fact as to whether she had access to the notice. Although it is true that Gonzalez did not have actual possession of these CDs, section 402(d) does not require proof that the infringer had "actual possession." 2 Nimmer on Copyright, ยง7.02[C][3], at 7-17 n.25 (2004). Instead, the plaintiff need only show that the CDs with notice "were in circulation [and] available" to the infringer. Id.
