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and other lame excuses offered by infringers.

© 2013 Mark H. Barinholtz


After more than 30 years of representing creative clients, I’ve noticed a few things about human behavior in the marketplace. In the course of pursuing infringers there appears to be both a credo and a mantra, a fundamental belief system accompanied by a formula for excuse. They keep coming up in case after case. Just as the mischievous child who exclaims the obvious result of his intentional or reckless behavior is only “an accident”, the infringer routinely exhibits feigned surprise as he backs into what he should have known might be the copyright buzzsaw. As the advent of the Internet saturates every aspect of modern technology and communication, the infringer’s credo and mantra grow louder and more persistent.

This article will examine the tension between what the facts of any given investigation often find with respect to my client’s legitimate claims of infringement on the one hand, and on the other, the infringer’s nearly irresistible urge to get something for nothing.

The Credo

The infringer’s mindset starts with the basic belief that it’s easier to beg for forgiveness than to ask for permission. This approach leads to the conclusion, in the mind of the infringer, that getting caught for stealing is a risk worth taking.

And just as the guilty mind seizes upon an excuse, no matter how hairbrained or delusional, the mindset persists in the defensive posture of “[T]hat’s my story and I’m stickin’ to it.” Of course, that’s the impression the infringer wishes to convey, until the story begins to unravel and the sticking turns into settling.

With his credo firmly in mind, it’s often difficult to dislodge the infringer’s zeal, even where the ripoff is obvious. In my world, i.e., litigation over these kinds of disputes, the infringer’s credo is put into play with the help of an equally misguided mantra.

The Mantra

The infringer’s formulaic incantation follows in three parts: First, they’ll never catch me. Second, if they catch me they’ll never sue me. And Third, even if they sue me, I’ll just stop infringing and pay them what I should have paid in the first place. It’s almost a business plan!

Here’s the problem. Copyright law is designed to take that misguided efficiency out of the marketplace by putting some teeth into enforcement. The various tools built into the Copyright Act to do that include, in appropriate cases, the availability of statutory damages, the eligibility to claim an award of attorney’s fees, and provision for disgorgement of the infringer’s ill-gotten profits. Additionally, with respect to bona fide violations of the Digital Millennium Copyright Act (DMCA), those too can add some significant sting to enforcement measures.

Strict Liability

Most infringers don’t understand that copyright infringement is a tort governed by principles which amount to strict liability for their actions. In ordinary language that means the state of mind of the infringer is irrelevant, or largely so, to the effect of the conduct. I often find myself reminding my opponents of language found in a long-standing case here in the Seventh U.S. Circuit Court of Appeals. In Toksvig v. Bruce, a 1950 case dealing with infringement of certain passages from plaintiff’s biography of “The Life of Hans Christian Andersen,” the Court noted that even if defendant’s argument was legitimate, i.e., that it rationally “assumed” certain passages and publicly available facts in issue were in the public domain, that would be irrelevant to avoid liability. The Court states simply that the infringer’s “[i]ntention is immaterial if infringement appears,” i.e., mental state does not bear upon the existence or non-existence of the violation. In everyday terms, the excuses about what’s in your mind or your heart just don’t matter.

Several music cases involving what is known as “subconscious”copying make the point. In ABKCO Music v. Harrisongs Music, former Beatle George Harrison was found liable for infringing The Chiffons’ “He’s So Fine”, when he wrote “My Sweet Lord.” Harrison admitted hearing The Chiffons’ “He’s So Fine” six years earlier in 1963 -- before he wrote his song -- when The Chiffons’ tune was at the top of the charts in the US and England. The Second U.S. Circuit Court of Appeals affirmed a jury verdict that found Harrison liable for infringement, albeit “subconscious”.

In Three Boys Music Corp. v. Bolton, the subconscious copying was even more remote in time, namely 25 years. In 1964, the Isley Brothers enjoyed a hit with the pop song “Love is a Wonderful Thing.” Nearly 25 years later they alleged that Michael Bolton’s 1991 pop hit of the same name, “Love is a Wonderful Thing,” infringed the group’s song. One of the issues involved the Ninth U.S. Court of Appeals’ analysis of the jury’s finding that Bolton, and his co-author Andrew Goldmark, had access to the Isley Brothers’ hit which was released in 1966 in a 45-record single and again in compact disc form in 1991 as part of a compilation of their earlier works. At trial, the Isley Brothers relied on a theory of widespread dissemination of their song and subconscious copying by Bolton. Although Bolton claimed independent creation, he acknowledged familiarity with the Isley Brothers’ hits as well as being a huge fan. The jury found infringement and assessed a multi-million dollar verdict.

These principles are not limited to any particular art form or medium.The infringer has either infringed, or he has not. While “intentional” acts can and do make a difference in relation to some aspects of a given infringement scenario, the infringer’s state of mind is not the gateway, or even first hurdle, to a creative author being able to maintain her claim. Instead, the infringer’s “intent”, or more specifically his possible lack of one, does not immunize the result of his actions.

DMCA Violations

When violations of the Digital Millennium Copyright Act are alleged,the violator’s mental state, both as to knowledge and as to intent, do play a larger role than when infringement is the only concern. The DMCA itself speaks to the violator’s knowledge that its removal or alteration of copyright management information (CMI), such as an author’s name and/or copyright notice, or dissemination of false CMI conveyed in connection with the work, forms the basis for alleging a violation. This difference in the law of DMCA violation, as opposed to copyright infringement, is inevitably seized upon by the infringer, who routinely initially seeks solace in “mental state” excuses in order to try to escape liability.

But it is the rare case where innocence is fact. The more typical scenario involves an infringer who, when also caught committing a DMCA violation, internalizes the aforementioned credo and mantra, all the while claiming to have a white heart and empty mind.


The foregoing discussion does not explore every excuse this author has encountered when pursuing copyright claims. One familiar favorite is the “finger pointing” excuse, i.e., “I’m not the infringer, Mr. Third-Party is the infringer.” Other knee-jerk reactions fall into the category of so-called standard boilerplate defenses, or “The dog ate my homework”. In my experience, predictable human behavior generally trumps sound legal argument when it comes to first reaction. Once caught, the infringer begins to sink further into the quicksand of meritless argument until it inevitably threatens to take him down. His only comfort is to fall back on the credo and the mantra – the very misconceptions that got him into trouble in the first place. Luckily for authors and creators, the copyright law patiently waits to be objectively applied in our federal courts.

© 2013 Mark H.Barinholtz