                  Cite as: 562 U. S. ____ (2010)             1

                      ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
    WHITNEY HARPER v. MAVERICK RECORDING 

               COMPANY ET AL. 

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

             No. 10–94. Decided November 29, 2010 


   The petition for a writ of certiorari is denied.
   JUSTICE ALITO, dissenting from denial of certiorari.
   I would grant the petition to consider the question
whether 17 U. S. C. §402(d) applies when a person is
found to have engaged in copyright infringement by down
loading digital music files. Under §504(c)(1), an infringer
is ordinarily liable for statutory damages of “not less than
$750 or more than $30,000” per work infringed. In a case
involving an “innocent infringer,” however, the minimum
statutory damages that must be awarded are reduced.
Specifically, if the infringer proves that he or she “was not
aware and had no reason to believe that his or her acts
constituted an infringement,” then the minimum statutory
damages per violation are $200. §504(c)(2).
   In this case, a 16-year-old was found to have infringed
respondents’ copyrights by downloading digital music files.
The District Court held that there were genuine issues of
fact on whether she qualified as an innocent infringer, but
the Court of Appeals reversed, concluding that another
provision, §402(d) foreclosed the innocent-infringer de
fense as a matter of law. Section 402(d) provides, with an
exception not relevant here, that if a prescribed notice of
copyright “appears on the published phonorecord or
phonorecords to which a defendant . . . had access, then no
weight shall be given to . . . a defendant’s interposition of a
defense based on innocent infringement in mitigation of
actual or statutory damages.” (Emphasis added.) The
2                HARPER v. MAVERICK RECORDING CO.

                          ALITO, J., dissenting

term “phonorecords” is defined as including only “material
objects.”1
   There is a strong argument that §402(d) does not apply
in a case involving the downloading of digital music files.
This provision was adopted in 1988, well before digital
music files became available on the Internet. See Berne
Convention Implementation Act, §7, 102 Stat. 2857. The
theory of §402(d) appears to be that a person who copies
music from a material object bearing the prescribed copy
right notice is deemed to have “reason to believe that his
or her acts constituted an infringement,” §504(c)(2). But a
person who downloads a digital music file generally does
not see any material object bearing a copyright notice, and
accordingly there is force to the argument that §402(d)
does not apply. In such a case, the question would simply
be whether the infringer “was . . . aware and had . . .
reason to believe,” §504(c)(2), that the downloading was
illegal.
   The Court of Appeals in the present case adopted a very
different interpretation of §402(d). The court held that the
innocent infringer defense was “foreclose[d] . . . as a mat
ter of law” because (1) respondents “provided proper notice
on each of the published phonorecords from which the
audio files were taken” before they were made available on
a file-sharing network and (2) petitioner relied solely on
§504(c)(2) and did not dispute her “access” to the phonore
cords under §402(d). 598 F. 3d 193, 198–199 (CA5 2010).
Under this interpretation, it is not necessary that the
——————
    1 Specifically,
                 17 U. S. C. §101 provides:
   “ ‘Phonorecords’ are material objects in which sounds, other than
those accompanying a motion picture or other audiovisual work, are
fixed by any method now known or later developed, and from which the
sounds can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device. The term
‘phonorecords’ includes the material object in which the sounds are first
fixed.”
                   Cite as: 562 U. S. ____ (2010)                 3

                        ALITO, J., dissenting

infringer actually see a material object with the copyright
notice. It is enough that the infringer could have ascer
tained that the work was copyrighted.2 The Fifth Circuit
did not specify what sort of inquiry a person who
downloads digital music files is required to make in order
to preserve the §402(d) defense, but it may be that the
court had in mind such things as research on the Internet
or a visit to a local store in search of a compact disc con
taining the songs in question. In any event, the Court of
Appeals rejected petitioner’s argument that her youth and
lack of legal sophistication were relevant considerations—
a conclusion that would not necessarily be correct if the
determinative question were simply whether petitioner
had “reason to believe” that her actions were illegal.
Although “reason to believe” is an objective standard, it is
by no means clear that certain objective characteristics of
the infringer—such as age—may not be taken into ac
count.
  The Fifth Circuit’s decision may or may not set out a
sensible rule for the post-“phonorecord” age, but it is at
least questionable whether the decision correctly inter
prets §402(d). Although there are now no conflicting
Circuit decisions, I would grant review in this case be
cause not many cases presenting this issue are likely to
reach the Courts of Appeals. The Court has decided not to
grant review at this time, but if a conflict in the Circuits
develops in the future, the question presented, in my
judgment, is important enough to warrant review.




——————
  2 In BMG Music v. Gonzalez, 430 F. 3d 888 (2005), the Seventh Cir

cuit adopted a similar interpretation of §402(d).
