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17.26 Copyright—Damages—Innocent Infringement (17 U.S.C. § 504(c)(2))

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17.26 COPYRIGHT—DAMAGES—INNOCENT INFRINGEMENT (17 U.S.C. § 504(c)(2))

An infringement is considered innocent when the defendant has proved both of the following elements by a preponderance of the evidence:

1. the defendant was not aware that [his] [her] [its] acts constituted infringement of the copyright; and

2. the defendant had no reason to believe that [his] [her] [its] acts constituted an infringement of the copyright.

Comment

The statutory damage minimum for innocent infringement is $200. 17 U.S.C. § 504(c)(2).

Whether defendant’s infringement was innocent is a factual determination. See Los Angeles News Serv. v. Reuters Television Int’l, 149 F.3d 987, 995 (9th Cir.1998). But even if the trier of fact finds that an infringement was innocent, this finding does not mandate a reduction in the statutory damages. See Los Angeles News Serv. v. Tullo, 973 F.2d 791, 800 (9th Cir.1992).